THE PRESIDENT'S POWERS SHOULD THE POWER OF THE PRESIDENCY BE SIGNIFICANTLY CURTAILED?

Colleue Debate Series

AMERICAN ENTERPRISE INSTITUTE FOR PUBLIC POLICY RESEARCH 1150 - 17th Street, N.W. • Washington, D.C. 20036 THE AMERICAN ENTERPRISE INSTITUTE FOR PUBLIC POLICY RESEARCH, established in 1943, is a publicly supported, nonpartisan research and educational organization. Its purpose is to assist policy makers, scholars, businessmen, the press and the public by providing objective analysis of national and international issues. Views expressed in the institute's publications are those of the authors and do not necessarily reflect the views of the staff, advisory panels, officers or trustees of AEI. Institute publications take three major forms: 1. Legislative Analyses-balanced analyses of current proposals before the Congress, prepared with the help of specialists from the academic world and the fields of law and government. 2. Studies-in-depth studies and monographs about government programs and major national and international problems, written by independent scholars. 3. Rational Debates, Meetings, and Symposia-proceedings of debates, discussions, and conferences where eminent authorities with contrasting views discuss controversial issues.

ADVISORY BOARD Paul W. McCracken, Chairman Edmund Ezra Day University Professor of Business Administration University of Michigan R.H. Coase George Lenczowski Professor of Economics Professor of Political Science University of Chicago University of California, Berkeley Milton Friedman Robert A. Nisbet Paul S. Russell Distinguished Service Albert Schweitzer Professor Professor of Economics of the Humanities University of Chicago Columbia University Gottfried Haberler James A. Robinson Resident Scholar President American Enterprise Institute University of West Florida C. Lowell Harriss Professor of Economics Columbia University EXECUTIVE COMMITTEE Herman J. Schmidt, Chairman.of the Board Richard J. Farrell William J. Baroody, President Dean Fite William G. McClintock, Treasurer SENIOR STAFF Thomas F. Johnson Gary L. Jones Director of Research Assistant to the President Joseph G. Butts for Administration Director of Legislative Analysis Edward J. Mitchell, Director Anne Brunsdale National Energy Project Director of Publications Robert B. Helms Robert J. Pranger Director of Health Policy Studies Director of Foreign and Defense Policy Studies COLLEGE DEBATE SERIES November 27, 1974

(ISBN 0-8447-1824-6)

TABLE OF CONTENTS

PREFACE ...... iii

INTRODUCTION--THE SETTING 1

The Nature of Executive Power. 1 Sources of the Framers' Ideas Concerning the Executive...... 2 The Executive Article in the Constitution. 4 The Exercise of Executive Power: "Emergencies," 1788-1945 ...... 7 The Exercise of Executive Power, 1945-1974: The Rise of the "Imperial" Presidency? .13

I. DEFINITION OF TERMS ... 17

"Power of the Presidency". .18 The Definition of "Significantly Curtailed". . 20 Ways to Curtail Executive Power. .22 Final Observations ...... 22

II. THE GROWTH OF PRESIDENTIAL POWER, 1940-1974. 25

Growth in the Domestic Powers of the President ...... 26 Development of Presidential Powers in Foreign Affairs...... 34

III. CURTAILING PRESIDENTIAL POWERS. 47 The President's Power as Chief Executive and Chief Administrator...... 48 The President's Power as Legislator. . . .53

-i- The President as Commander-in-Chief.. .54 The President as an Organ of Foreign Policy .SS NOTES TO TEXT 63

BIBLIOGRAPHY. 73

-ii- PREFACE

This special analysis explores the issues presented in the 1974-75 in­ tercollegiate debate proposition: "Resolved That the Power of the Presi­ dency Should Be Significantly Curtailed." It is published by the Ameri­ can Enterprise Institute in response to many requests from college de­ baters and coaches for background materials and references on the sub­ ject of the debate.

The analysis was prepared by Chester B. Earle, professor of government, the American University; Valerie A. Earle, professor of government, Georgetown University; and Professor John A. Lynch, director of debate, St. Anselm's College, Manchester, New Hampshire.

The authors have tried to assemble, organize, and present factual and authoritative material in such a way as to help debaters identify and explore the central issues raised by the national debate proposition.

The Introduction presents information on the nature and sources of execu­ tive power--the setting for the discussion. Chapter I defines the terms of the debate proposition. The second chapter deals with the growth of presidential powers in domestic and foreign affairs, and the final chap­ ter explores the major issues involved in proposals to curtail such powers.

The analysis is not intended to provide a complete manual, but to serve as a guide to research and to stimulate exploration of additional issues and sources. To this end, a bibliography provides references in addition to those quoted or cited in the footnotes.

The analysis is a research tool and should not be construed as reflecting policy positions on the part of the staff, officers, advisory boards, or trustees of the American Enterprise Institute.

-iii- INTRODUCTION--THE SETTING

The Nature of Executive Power

Almost from the adoption of the Constitution in 1788, presidential power has been the subject of recurring, often heated, debate. E. S. Corwin wrote of executive power that it is by nature residual power. In a government of delegated powers, and of separation of power among three coequal branches, the power of the executive branch is least sus­ ceptible to precise definition.I/ John Locke, writing in 1690 in defense of the Glorious Revolution of 1688 in England--a revolution which is said to have transferred sovereignty from king to Parliament--asserted none­ theless the necessity for broad executive discretion. In The Second Treatise of Government, Locke writes: Where the legislative and executive power are in distinct hands--as they are in all moderated Monarchies and well­ formed governments--there the good of the society requires that several things should be left to the discretion of him that has the executive power; for the legislators not being able to foresee and provide by laws for all that may be useful to the community, the executor of the laws, having the power in his hands, has by the common law of nature a right to make use of it for the good of the soci­ ety..• till the legislative can conveniently be assembled to provide for it. Many things there are which the law can by no means provide for; those must necessarily be left to the discretion of him that has the executive power in his hands, to be ordered by him as the public good and advantage shall require; nay, it is fit that the laws them­ selves should in some cases give way to the executive power, or rather to this fundamental law of nature and government, viz., that as much as may be, all the members of the soci­ ety are to be preserved; for since many accidents may hap­ pen wherein a strict and rigid observation of the laws may do harm--qr not to pull down an innocent man's house to stop the fire when it is burning--and a man may come some­ times within the reach of the law, which makes no distinc­ tion of persons, by an action that may deserve reward and pardon, it is fit the ruler should have a power in many cases to mitigate the sev�rity of the law and pardon some offenders; for the end of government being the preserva­ tion of all as much as may be, even the guilty are to be spared where it can prove no prejudice to the innocent.

-1- This power to act according to discretion for the public good, without the prescription of the law and sometimes even against it, is that which is called prerogative; for since in some governments the lawmaking power is not al­ ways in being and is usually too numerous and so too slow for the dispatch requisite to execution, and because also it is impossible to foresee, and so by law to provide for, all accidents and necessities that may concern the public, or to make such laws as will do no harm if they are exe­ cuted with an inflexible vigor on all occasions and upon all persons that may come in their way, therefore there is a latitude left to the executive power to do many things of choice which the laws do not prescribe. This power while employed for the benefit of the community and suitably to the trust and ends of the government, is undoubtedly prerogative, and never is questioned; for the people are very seldom or never scrupulous or nice in the point; they are far from examining prerogative while it is in any tolerable degree employed for the use it was meant, that is, for the good of the people, and not mani­ festly against it. But if there comes to be a question between the executive power and the people about a thing claimed as a prerogative, the tendency of the exercise of such prerogative to the good or hurt of the people will easily decide that question ....

Prerogative is nothing but the power of doing public good without a rule.�

Sources of the Framers' Ideas Concerning the Executive In America, in the period from the Declaration of Independence to the Constitutional Convention, there was growing concern on the part of many that the new nation could not survive without a stronger union than that provided under the Confederation, nor could it survive without a greater capacity on the part of all governments to act as needed, but with re­ straint and with regard for the interests of all. The problems besetting the national government under the Articles of Con­ federation are well known: the inability of the national government to raise adequate armies and its general incapacity for dealing effectively with other nations, which led to grave anxiety for the survival of the new nation; the growth of commercial rivalries between the states, with trade barriers multiplying so as to frustrate the development of commerce; the rising concern of the smaller states that by themselves they could not withstand the commercial aggressions of the larger states; and the

-2- realization by states such as Georgia that they might by themselves be unable to mount a successful defense against the Indian tribes. Less well known and understood are the very great difficulties arising in those states which had in fact established legislative supremacy, gener­ ally by providing for an executive branch wholly dependent upon the legis­ lature, -the chief executive being appointed by and acting only as agent for the legislature.3/ In these states, legislatures showed themselves to be unduly responsive to transient majorities, neglectful of the in­ terests and rights of individuals and minorities, and unimaginative or uncaring about the development of state programs which could benefit a wide range of interests. In sum, all too often the legislative bodies of the period appeared capricious, arbitrary, captives of a single interest, unwise, and lacking in a sense of the state's general needs.4/ In contrast, in Massachusetts and to a more limited degree in New York, Pennsylyania, and New Jersey, where the constitutions provided for inde­ pendent and powerful executive and judicial branches of the government, the people appeared to have far greater confidence in the competence and wisdom of their governments. In these states, governors, having indepen­ dent powers and being selected independently of the legislatures, exer­ cised initiatives in governing, and in vetoing legislative actions which appeared to them unwise or unnecessary in light of their perception of the state's needs. From 1780 on, state courts began to act, in cases brought before them, to protect the rights of citizens against legislative abridgement--for example, legislative nullification of deeds of property and of other contracts, legislative settlement of wills in contravention of their clear terms, and legislative requirement that creditors accept depreciated paper money in settlement of debt, rather than gold or silver.SI In part, then, the Framers' ideas concerning the national executive to be established within the new constitution were shaped by experience with the state governments established in 1776, in which legislative supremacy prevailed, very often to the dismay of many. Certainly, also, they were aware of Locke's writing on prerogative in the Second Treatise and they were aware of the "balanced constitution" of which Baron de la Brede et Montesquieu wrote in The Spirit of the Laws. In every government there are three sorts of power: the legislative; the executive in respect of things dependent on the law of nations; and the executive in regard to matters that depend on the civil law ...• When the legislative and executive powers are united in the same persons, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical

-3- laws, and execute them in a tyrannical manner. Again, there is no liberty if the judiciary power be not sepa­ rated from the legislative and the executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with vio­ lence and oppression. There would be an end of every­ thing, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of indivi­ duals . .§_/

Finally, many of the Framers had read Blackstone, another exponent of the "balanced constitution."?/ Though describing the powers of Parliament most sweepingly, and asserting that the king is subject to the law, Black­ stone makes it clear that the law is considerably more than acts of Par­ liament, and that the royal prerogative is preserved, especially in the fields of diplomacy and of military command.

The Executive Article in the Constitution

The convention was divided upon the questions of whether there should be a single or a plural executive; whether the executive should be chosen by the legislature or independently of it; whether the executive should have a fixed term or serve at the pleasure of the legislature; whether the exe­ cutive should be vested with powers in the Constitution or should exercise only those given to him by the legislature; and whether the executive might exercise powers on his own initiative, subject only to the Consti­ tution, or be required to seek the advice and consent of the legislature or of a council.

James Wilson was the leader of the strong executive party, which included Madison, Hamilton, and Gouverneur Morris. They believed a strong execu­ tive essential to a strong national government. They proposed a single executive, elected independently, serving for a fixed term and vested with his own powers in the Constitution. The executive should be able to act without seeking the advice or consent of the legislative body, and should have power, such as the veto, which would enable him to check the legis­ lature. As Hamilton wrote in one of the several Federalist papers dealing with the executive branch: Energy in the executive is a leading character in the defini­ tion of good government. It is essential to the protection

-4- of the conununity against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high handed combinations which sometimes interrupt the course of justice; to the security of liberty against the enter­ prises and assaults of ambition, of faction, and of anarchy ....

That unity [in the executive] is conducive to secrecy will not be disputed. Decision, activity, secrecy, and dis­ patch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of a greater number; and in proportion as the number is in­ creased, these qualities will be diminished.

This unity may be destroyed in two ways: either by vesting the power in two or more magistrates of equal dignity and authority, or by vesting it ostensibly in one man, subject in whole or in part, to the control and cooperation of others, in the capacity of counsellors to him ..•.

Whenever two or more persons are engaged in any conunon enter­ prise or pursuit, there is always danger of difference of op1n1on. [From such difference] ...the most bitter dissen­ sions are apt to spring. Whenever these happen, they lessen the respectability, weaken the authority, and distract the plans and operations of those whom they divide. If they should unfortunately assail the supreme executive magistracy of a country, consisting of a plurality of persons, they might impede or frustrate the most important measures of the government, in the most critical emergencies of the State. And what is still worse, they might split the com­ munity into the most violent and irreconcilable factions, adhering differently to the different individuals who com­ posed the magistracy ....

[Supposing the existence of an advisory council whose con­ currence would be required for executive action], an art­ ful cabal in that council would be able to distract and to enervate the whole system of administration. If no such cabal should exist, the mere diversity of views and opinions would alone be sufficient to tincture the exer­ cise of the executive authority with a spirit of habitual feebleness and dilatoriness. (Federalist No. 70) And regarding the term of office, Hamilton wrote:

Duration in office has been mentioned as the second requi­ site to the energy of the executive authority. This has

-5- relation to two objects: to the personal firmness of the executive magistrate, in the employment of his Constitu­ tional powers, and to the stability of the system of ad­ ministration which may have been adopted under his auspices. With regard to the first, it must be evident that the longer the duration in office, the greater will be the probability of obtaining so important an advantage. It is a general principle of human nature that a man will be interested in whatever he possesses, in proportion to the firmness or precariousness of the tenure by which he holds it; will be less attached to what he holds by a momentary or uncer­ tain title than to what he enjoys by a durable or.certain title; and, of course, will be willing to risk more for the sake of the one than for the sake of the other. This remark is not less applicable to a political privilege, or honor, or trust, than to any article of ordinary prop­ erty. The influence from it is that a man acting in the capacity of chief magistrate, under a consciousness that in a very short time he must lay down his office, will be apt to feel himself too little interested in it to hazard any material censure or perplexity, from the independent exertion of his powers, or from encountering the ill-humors, however transient, which may happen to prevail, either in a considerable part of the society itself, or even in a predominant faction in the legislative body. If the case should only be that he might lay it down, unless continued by a new choice, and if he should be desirous of being con­ tinued, his wishes, conspiring with his fears, would tend still more powerfully to corrupt his integrity or debase his fortitude. In either case, feebleness and irresolu­ tion must be the characteristics of the station. (Federa­ list, No. 71)

In sum, Madison, Hamilton, Morris, and Wilson believed that a strong exe­ cutive could only be established through the independence of the execu­ tive--that is, through separation of powers. That they fully intended the executive to be accountable to the people and to the legislative branch is evident in various provisions of the Constitution, as described by Hamil­ ton in Federalist No. 77:

Does [the executive office] ... also combine the requisites to safety, in the republican sense--a due dependence on the people--a due responsibility? The answer ...is satis­ factorily deducible from these circumstances: from the election of the President once in four years by persons immediately chosen by the people for that purpose and from his being at all times liable to impeachment, trial, dis­ mission from office, incapacity to serve in any other,

-6- and to forfeiture of life and estate by subsequent prose­ cution in the common course of the law. But these pre­ cautions, great as they are, are not the only ones which the plan of the Convention has provided in favor of the public security. In the only instances in which the abuse of the executive authority was materially to be feared [in the declaring of war, negotiation of treaties, the making of appointments, and the making of decisions as to how money shall be spent] the chief magistrate of the United States [is] subjected to the control of a branch of the legislative body.

The Exercise of Executive Power: "Emergencies," 1788-1945

A testing of the Corwin thesis concerning the residual character of execu­ tive power, and of Locke's prerogative power, can best be done in the con­ text of governmental response to strongly felt needs, and especially to emergencies.

Early instances of the exercise of presidential power often pale in com­ parison with President Abraham Lincoln's actions at the beginning and dur­ ing the course of the Civil War. Still, it should be remembered that Presi­ dent Thomas Jefferson bought the Louisiana Territory, an act supported by the appropriation of the requisite money by Congress, though no clear con­ stitutional grant empowered either branch to acquire new territory; Presi­ dent James Madison called forth the state militias to the defense of the United States in the War of 1812, and subsequently was upheld against the claims of state governors that they, as commanders-in-chief of the state militias, could determine whether a danger of invasion of the United States actually existed; 8/ President Andrew Jackson exercised the veto for the reason that he disagreed with Congress on its policy rather than, as had his predecessors, because he believed a measure unconstitutional; and Presi­ dent James K. Polk set in motion the secret negotiations which culminated in the annexation of Texas.

Wars have been the clearest cases of emergencies in which extraordinary powers were exercised without serious opposition, at least until the war in Vietnam. With the firing upon Fort Sumter, President Lincoln called out the state militias for a ninety-day period, called 40,000 volunteers for three years of service, increased the army by 23,000 men and the navy by 18,000, paid out $2 million in unappropriated funds to persons authorized to receive monies for the conduct of military activities, closed the Post Office to treasonable correspondence, subjected travelers to and from for­ eign countries to new passport regulations, suspended the writ of habeas corpus in various places, and placed in military detention persons repre­ sented to him as engaged in or contemplating treasonable practices--all before Congress was called into session three months later and, for the

-7- most part, without statutory authorization. In remarkable degree, Congress acquiesced in what the President had done, and supported him throughout the war.9/

But on the death of President Lincoln, the differences which were already clear between him and the Congress on the proper course of Reconstruction were greatly exacerbated. There was a general congressional revulsion against executive power, which reached a high point in the impeachment and trial of President Andrew Johnson. For nearly three decades, until the presidency of Theodore Roosevelt, Congress seem�d to be ascendant over the executive branch. It should be remembered, however, that in two tests of presidential power in the 1890s, In re Neagle, 1890, and In re Debs, 1895, the Supreme Court upheld uses of presidential power not de- rived from specific grants in the Constitution or from legislation.IO/ President William Howard Taft later described these two rulings as giving foundation to the President's acting whenever there was a "widespread pub­ lic interest. "11/ With U.S. entry into World War I, President Woodrow Wilson was delegated power by Congress more sweeping than ever before. Pursuant to these dele­ gations, the President was able to regulate by license the importation, manufacture, storage, mining, or distribution of necessaries; to purchase, store, and sell certain foods; to take over and operate factories, packing houses, pipelines, mines, and other plants; to limit, regulate, or prohib­ it the use of food materials in the production of alcoholic beverages; to fix the price of coal and coke and to regulate their sale and distribution; to raise an army by conscription; to declare certain exports unlawful; to determine priority in car service; to license trade with the enemy or his allies; to censor all communications by mail, cable, radio, or otherwise with foreign countries; to regulate the foreign language press of the coun­ try; to regulate the conduct of enemy aliens in the United States or its possessions; to take over and regulate the telegraph and telephone systems; and to redistribute functions among the executive agencies of the national government.

E. S. Corwin writes, in comparing Wilson's powers with those of Lincoln in a war, that the difference was not one of "tenderness for customary constitutional restraints"..• but "one of method. The immediate basis of••. [President Lincoln's power] was the 'Commander-in-Chief' clause and in­ sistence on the Separation of Powers principle; the immediate basis of .•. [President Wilson's power] was the national legislative power and minimiza­ tion of that principle."12/ Corwin continues: At the same time, Wilson did not by any means overlook his constitutional prerogatives as Commander-in-Chief. His creation of the Committee on Public Information, the War

-8- Industries Board, and a War Labor Board rested exclusively on this basis, as did so many of the vast powers exercised by these bodies in enforcing a so-called "voluntary censor­ ship" of the press and in "coordinating" private industry.13/ President Franklin D. Roosevelt exercised broader powers than any of his predecessors during the emergency preceding World War II and, after Decem­ ber 7, 1941, during the war itself. (Earlier, in dealing with the domes­ tic problems of the Great Depression, he had acted on his own initiative-­ as in closing the banks at the beginning of his term in 1933--and had also been highly successful in persuading Congress to enact legislation, much of it delegating broad authority to the President or to executive agencies in dealing with the depression.)14/ The Lend-Lease Act of March 11, 1941, 15/ preceded U.S. entry into the war by nearly nine months and was itself preceded, by nearly nine months, by the President's agreement with Great Britain that in return for the lease of certain sites for naval bases in the Western Atlantic, the British would be given fifty over-age American destroyers, recently reconditioned and reconunissioned. Congress was not asked formally to ratify this act of disposing of American ships of war; it did so, nevertheless, by appro­ priating money to build naval bases on the sites obtained. Lend-Lease made it possible for the President to assist Britain by provid­ ing defense articles--anything from butter to battleships--although the Neutrality Act of 1939 made it mandatory that Britain, as a combatant, pay cash for anything purchased from the United States, and the Johnson Act of 1934 barred Britain, as a defaulting World War I debtor, from borrowing the needed dollars for purchases. As Corwin writes, the act "delegated to the President the power to fight wars by deputy; to all intents and purposes, it was a qualified declaration of war."16/ Sections of the National Defense Act of June 3, 1916, and of the Act of March 4, 1917, still on the statute books, authorized the President in time of war, or when war was inuninent, to place an order with any indivi­ dual, firm, or industry for any product or material required, compliance with such orders being obligatory, on penalty of commitment of a felony.17/ The President was empowered to procure all needed ships and war material-.­ He was authorized to modify or cancel contracts for the production or pur­ chase of ships or war materials, and to require owners or occupants of factories producing war materials to place the whole or any part of the output of the factory at government disposal. The Selective Training and Service Act of September 16, 1940, reenacted the above statutory provisions and reinforced them with the penalty of plant seizure.l!}_/

-9- The Priorities Statute of May 31, 1941, required that the priority princi­ ple should extend in addition to deliveries under contracts of the Army or Navy, to deliveries of material under (A) contracts or orders for the Government of any country whose defense the President deems vital to the defense of the U.S. under the terms of the Act of March 11, 1941, entitled "An Act to promote the Defense of the United States"; (B) contracts or orders which the President shall deem necessary or appropriate to promote the defense of the U.S.; and (C) subcontracts or orders which the President shall deem necessary or appropriate to the fulfillment of any contract or order as specified in this section.19/ The President was also authorized to allocate and to ration defense mate­ rials. The Second War Powers Act of March 27, 1942, extended authority to allo­ cate materials to facilities as well, and provided a criminal penalty for disobedience of directives.20/ The Emergency Price Control Act of 1942 created the Office of Price Admin­ istration (OPA), to be headed by an administrator appointed by the Presi­ dent with consent of the Senate, with authority to promulgate regulations fixing prices and rents which would be "duly fair and equitable" and which would effectuate the purposes of the act, which were "to stabilize prices and to prevent speculative,unwarranted, and abnormal increases in prices or rents; to eliminate and prevent profiteering, hoarding, etc.; [and] to assure that defense appropriation� are not dissipated by excessive prices; to protect persons with relatively fixed and limited incomes, consumers, and wage earners from undue impairment of their standard of living.•.. "21/ This broad delegation of legislative power was upheld by a majority of the Supreme Court in Yakus v. United States, 22/ a dissent being registered by Justice Owen J. Roberts: After showing what needs no argument , that ... [the] powers of Congress are very different from those exercised in peace, the Court then--without a sign that it realizes the great gap in the process--assumes that one of Congress's war powers is the power to transfer its legislative func­ tion to a delegate. By the same reasoning, it could close

-10- this court or take away the constitutional prerogatives of the President as "war measures." ...The reasoning of the authorities cited [by the majority] seems to indicate that the delegation would be good in peacetime in respect of peacetime administration. 23/

President Roosevelt had by April 1942 created thirty-five executive agen­ cies, of which eight were the creation of our own and other governments, and the remaining twenty-seven operated wholly on the home front and of most of them the membership was nonofficial. The President, in explaining the creation of these agencies, alluded to his powers as commander-in-chief and to the First War Powers Act, which authorized redistribution of execu­ tive functions. The act had authorized creation of new advisory but not operating agencies.

The War Manpower Commission (WMC) was a good example of a presidentially created agency which exercised very great power over manpower, in civilian employment and in the Selective Service System. This power was exercised largely through "indirect" sanctions, that is, sanctions carrying consider­ able force but in fact devoid of legal authority. Every federal agency was required to utilize such WMC facilities, services, personnel, and powers, as the chairman of WMC should dictate. The chairman of WMC issued the famous "work or fight" order in February 1943, requiring workers to choose between induction into the armed forces and transfer to essential jobs; the order carried a penalty for disobedience. At the same time, draft requirements were lowered. By presidential order, a forty-eight­ hour workweek was ordained .. Within a year, WMC, then in control of 85 percent of the work force of the nation, decreed that all male workers in the United States were to be hired only through the U.S. Employment Service, an agency also subject to WMC. Reluctant employers were at first subjected to a stirring up of public opinion against them for failing to cooperate in the war effort; if they still did not go along, they might have their electric power, heat, and lig�ting turned off, and be deprived of materials and of shipping facilities.

The WMC stated that government contracts might be withheld from employers found to be in willful and substantial non­ compliance with the ceiling program. Since violators would have all their labor referrals and other manpower services cancelled, government procurement officers would be unable to renew or place contracts with such firms on the ground that they might be unable to manufacture the products speci­ fied for lack of available manpower.24/

Not until 1944 did the Supreme Court pass upon "indirect sanctions." In the case of Steuart and Brothers Inc. v. Bowles the Supreme Court upheld the refusal of a federal district court to enjoin OPA from denying Steuart oil for resale or transfer for the period of a year.25/ Steuart had bought

-11- and sold oil without giving or requiring in return ration stamps. The company conceded the validity of OPA's requirement of ration stamps for these transactions, because the statute creating OPA had vested it with authority to ration. It denied the validity of the penalty imposed on it by OPA--its being frozen out of business for a year--because the statute did not authorize the imposition of such a penalty. Writing for the majority, Justice William 0. Douglas asserted: ... middlemen--wholesalers and retailers--bent on defying the rationing system could raise havoc with it. These middlemen are the chief if not the only conduit between the source of limited supplies and the consumers. From the viewpoint of a rationing system a middleman who dis­ tributes the product in violation and disregard of the prescribed quotas is an inefficient and wasteful conduit .... Certainly we could not say that the President would lack the power under this act to take away from a wasteful fac­ tory and route to an efficient one a previous supply of material needed for the'manufacture of articles of war. From the point of view of the factory owner from whom the materials were diverted the action would be harsh .... But in times of war the national interest cannot wait on individual claims to preference ....Yet if the President has the power to channel raw materials into the most ef­ ficient industrial units and thus save scarce materials from wastage it is difficult to see why the same princi­ ple is not applicable to the distribution of fuel oil.26/ It is probable that President Roosevelt's conception of his powers as com­ mander-in-chief during World War II--a conception acquiesced in by Congress on a multitude of occasions--is succinctly and precisely stated in a por­ tion of a speech delivered on September 7, 1942, in which the President demanded that Congress repeal immediately a portion of the Emergency Price Control Act: I ask the Congress to take this action by the first of October. Inaction on your part by that date will leave me with an unescapable responsibility to the people of this country to see to it that the war effort is no longer imperiled by threat of economic chaos. In the event that Congress should fail to act and to act adequately, I shall accept the responsibility, and I will act. At the same time that fair prices are stabilized, wages can and will be stabilized also. This I will do.

-12- The President has the powers, under the Constitution and under congressional acts, to take measures necessary to avert a disaster which would interfere with the winning of the war. I have given the most thoughtful consideration to meeting this issue without further reference to the Congress. I have determined, however, on this vital matter to consult with the Congress ..•. The American people can be sure that I will use my powers with a full sense of my responsibility to the Constitu­ tion and to my country. The American people can also be sure that I shall not hesitate to use every power vested in me to accomplish the defeat of our enemies in every part of the world where our own safety demands such a defeat. When the war is won, the powers under which I act auto­ matically revert to the people--to whom they belong.27/ Thus did the President claim the power and right to disregard a statutory provision that he did not and could not challenge even though he was obli­ gated, under the Constitution, to "take care that the laws be faithfully executed." It should be noted, however, that in asserting the power to disregard this provision the President referred to his powers under other "congressional acts" as well as under the Constitution.

The Exercise of Executive Power, 1945-1974: The Rise of the "Imperial" Presidency? The administrations of Presidents Harry S. Truman and Dwight D. Eisenhower could not be described as periods of calm, nor of restoration of the bal­ ance of power between Congress and President, nor even of cordial coopera­ tion between President and Congress. President Truman faced the wrenching problems of reconversion to a peace­ time economy, of reconstruction of western Europe, of the deadly develop­ ment of a cold war in counterpoint to the "breaking out" of peace follow­ ing the defeat of the Axis forces, of a threat of internal subversion, and finally of Korea in which U.S. forces played the leading role in a United Nations police action to defend South Korea from North Korea. From 1946 to 1948, he had a Republican Congress, from which it might be expected that an effort would be made to attain partisan advantage by fighting a Presi­ dent of the opposition party. President Eisenhower worked with Democratic Congresses throughout his eight years in office. He was confronted with a continuation of the cold war,

-13- what appeared to be an advancing degree of Soviet military superiority, fighting between mainland China and Formosa beginning in 1953, and hosti­ lities in the Middle East beginning in 1957.

Neither administration was marked by extensive or bitter national contro­ versy s nor by a protracted struggle between President and Congress.

The same observation could be made with respect to President John F. Ken­ nedy's nearly three years in office and to President Lyndon B. Johnson's first year as President, with the single qualification that these were years during which the civil rights movement made substantial efforts to secure black rights and in some places and at some times these efforts were marked by violence. It was the Vietnam War, especially in the period after 1965, which provided the principal basis for alleged extension of presidential power.

More recently, President Richard M. Nixon was said to have exceeded the power to impound funds delegated to Presidents by Congress. He was accused of involving himself significantly in the series of plans and acts loosely described as Watergate, most of them having to do with the campaign to re­ elect him. As investigations of Watergate got under way, charges were made concerning White House staff efforts to cover up details of the reelection campaign, and concerning staff efforts to monitor the activities of indivi­ duals in the name of national security.

Arthus Schlesinger, Jr., has written:

In the last years, presidential primacy, so indispensable to the political order, has turned into presidential supre­ macy. 'fhe constitutional presidency--as events so dis­ parate as the Indochina War and the Watergate affair showed-­ has become the imperial presidency and threatens to be the revolutionary presidency.28/

As one examines the legislative context, in existence since the 1930s, for use of armed forces in the event of hostilities and for the management of domestic affairs in time of emergency, it is difficult to distinguish the conditions under which Presidents Lincoln, Wilson, and Franklin Roosevelt worked from those under which Presidents Johnson and Nixon worked. The earlier Presidents, it can be argued, were able to exercise as much dis­ cretionary power, with the acquiescence of Congress, as Presidents Nixon and Johnson.

If one compares the Roosevelt message to Congress of September 7, 1942, quoted above, with any act taken by President Johnson or Nixon, can it be said of the latter two that they acted in imperial fashion while President Roosevelt acted "constitutionally"?

-14- As the staff of the Senate Special Committee on the Termination of the National Emergency wrote in a Working Paper published by the Committee in October 1973: "No charge can be sustained that the Executive branch has usurped powers belonging to the Legislative branch; on the contrary, the transfer of power has been in accord with due process of normal legis­ lative procedures."29/

It can be argued, then, that neither President Johnson nor President Nixon claimed a greater measure of power than that given by Congress to other Presidents, and that neither interpreted his powers more generously than had Presidents Lincoln, Wilson, or Franklin Roosevelt. Both exercised power subject to the customary checks by Congress, the courts, and the people. Thus, it may be argued that they were not "imperial" Presidents, but Presidents faced with hard and divisive choices.

-15- I. DEFINITION OF TERMS

The 1974-75 debate resolution is: "That the Power of the Presidency Should Be Significantly Curtailed." Initially, both the affirmative and the nega­ tive must ask some difficult--but vital--questions about the meaning of the debate proposition. This section will present those questions and seek to answer them. We deal first with the definition of the two major terms: "the power of the presidency" and "significantly curtailed." We also discuss some im­ portant problems raised by the definitions. Before beginning the definitional analysis, two preliminary observations seem appropriate. First, the resolution is essentially open-ended; it does not point to any particular presidential power, or powers, that should be curtailed. This obviously gives the affirmative wide latitude and broadens the challenge facing the negative. It also broadens the challenge facing the authors of this analysis. The President has a broad array of powers. We attempt to discuss the major areas of presidential power. The affirmative may propose curtailment of other powers and the negative must be ready to de­ fend them. Second, the resolution raises a most important question: the wisdom of effecting institutional fhange in order to achieve changes in particular policies or practices. The affirmative that proposes to prohibit a parti­ cular policy or practice--of the Nixon administration, for example--may be asking, in effect, that the institution of the presidency be limited-­ perhaps in a permanent way--to deal with a transitory problem. The nega­ tive may argue that basic changes aimed at the conduct of a particular President or his assistants may be dangerous. For example, in the early part of this century, liberal congressmen led by Congressman George Norris (R-Nebr.) fought successfully to curtail and decentralize the power of the Speaker of the House of Representatives.30/ Forty or fifty years later, liberals complained that decentralized power stalled progressive legisla­ tion. In 1937 liberal supporters of Franklin Roosevelt favored curtailing the power of the Supreme Court when the Court was invalidating New Deal legislation; years later many of the same persons defended the Court's power at a time when its decisions were in accord with their views. "It all depends upon whose ox is being gored." Thus, the negative may warn that changing circumstances make institutional modifications for noninstitutional reasons an unacceptable course. Even

-17- a highly specific limitation on power may create a precedent for less justified limitations at some future point.

At the outset, then, the negative may oppose a particular affirmative pro­ posal not only because its policy results may be wrong, but also because its way of achieving these results may be disadvantageous. The affirma­ tive must confront this argument and the negative may raise it because the proposition deals with the presidency in terms of the power of the presi­ dency as an institution.

On the other hand, it may be argued that to curtail a given power of the presidency is the only safe way to prevent repetition of its abuse. Thus it may be argued that where there have been serious abuses of the discre­ tionary powers of governmental institutions such powers should be curtailed by law; that "ours is a government of law, not of men."

"Power of the Presidency"

Black's Law Dictionary defines "power" as "the right, ability, or faculty of doing something."31/ The term "presidency" obviously refers to the office of the President of the United States. The debate topic does not contain the usual terms such as "federal government" or "the United States." Does this mean that the affirmative can argue that the phrase "power of the presidency" in the resolution may be taken to refer to presidential powers external to the federal government? For instance, can the affirma­ tive define the power of the presidency to refer to the presidency of busi­ ness corporations such as General Motors? Linguistic analysis suggests this possibility. Such interpretation may also indicate that linguistic analysis is an insufficient guide to the determination of the meaning of the terms in the 1974-75 debate proposition.

Authorities as diverse as Harvard philosopher William Van Orman Quine and members of the Supreme Court agree that words cannot be interpreted in a contextual vacuum. Chief Justice Fred M. Vinson wrote in 1949: ". ..we do not make a fortress out of the dictionary. And we have, therefore, consistently refused to pervert the process of interpretation by mechani­ cally applying definitions in unintended contexts."32/ In this specific case, how do we know what the intended context of the "president" is? In the light of the recent debates in Congress and elsewhere it may be argued that for the purpose of this debate the word "president" is used in the context of political science, and has the meaning given it by that disci­ pline. If we follow this route, the term "presidency" means the office · of the President of the United States. On the other hand, the more ex­ pansive view of the meaning of "presidential" may be correct. The affirma­ tive may be able to discuss everything from presidential control of foreign trade to General Motor's investment policies, but references to context and a prudent respect for the sensibilities of debate judges seem to advise against the latter course.

-18- Admittedly all of this does not dispose of the issue of what the term "presidential" means. There is no rule that the.terms of the debate pro­ position must be considered in the context of political science--or in the context of any discipline from which the terms may be borrowed.

The basic source of many of the President's powers are enumerated in Arti­ cle II of the Constitution. The noted scholar of the American presidency, Edward S. Corwin, characterizes Article II as "the most loosely drawn chap­ ter of the Constitution." Corwin writes: "To those who think that a con­ stitution ought to settle everything beforehand it should be a nightmare; by the same token, to those who think that constitution makers ought to leave considerable leeway for the future play of political forces, it should be a vision realized."33/ The source of many of the powers of the presidency are found within Article II and are expressed roughly as follows:

(1) The executive power shall be vested in the President of the United States.

(2) The President shall be the commander in chief of the army and the navy of the United States.

(3) He shall have power, by and with the Senate, to make treaties.

(4) He shall have the power to grant pardons for offenses against the United States.

(5) He shall from time to time give to the Congress information of the state of the union.

(6) He shall appoint ambassadors, other public ministers and con­ suls, judges of the Supreme Court, and all other officers of the United States whose appointments are not otherwise provided for in the Constitution.

Jack Planto and Milton Greenberg point out that the six constitutional grants of power quoted above do not include all the power the President possesses. The President possesses a broad array of powers, some provided by the Constitution, some based on custom and tradition, some delegated to him by Congress, and others simply inherent in the nature of his office. Foremost are those broad and largely undefined powers that he ex­ ercises as chief of foreign policy. These include the leadership of the armed forces, the recognition of foreign states and governments, the conduct of diplomacy, the mak­ ing of internati�nal agreements and treaties with the Sen­ ate's approval, the initiation of new foreign programs,

-19- and the providing of leadership for the United States and the Free World. In his role as chief administrator, the President exercises broad appointing and removal pow­ ers, directs and supervises the operation of the execu­ tive branch, directs the formulation of the annual budget, and sees that the laws are faithfully executed. As chief legislator, the President initiates comprehensive legis­ lative program� delivers regular and special messages to Congress, summons Congress into special sessions, wields a broad veto power and influences the course of much legis­ lation in his relations with legislative leaders and by arousing public opinions to support his programs.34/

On the other hand, there are limits to presidential power. This was demon­ strated in 1952 when President Truman claimed the power to seize the steel industry. The Court ruled against the President.35/ Despite the argument that the seizure power claimed by the President was "inherent" and "implied from the aggregate of his powers" set forth in the Constitution, a Supreme Court opinion by Justice Hugo L. Black said: "The President's [seizure] power, if any, must stem either from an act of Congress or from the Consti­ tution itself." The Court could not find a presidential seizure power in the Constitution or in any authority vested in the President by Congress and so it held that the seizure was unconstitutional. Thus the two basic sources of presidential powers are the Constitution itself and delegations of power enacted by Congress. It follows, of course, that such powers may be curtailed (1) by amending the Co�stitution or (2) by enacting legisla­ tion to withdraw powers previously delegated by Congress.

Moreover, in order to exercise his powers--even powers delegated to him by Congress--the President must have money and can get it only when Con­ gress appropriates it. Likewise, he is dependent on Congress to create the agencies through which he must ordinarily exercise his powers, and Congress is the judge of the continuing necessity and proper conduct of such agencies. He is bound to "take care that the laws" that Congress enacts are "faithfully executed·." Congress has the power to investigate his every official act, and can, if the House votes impeachment and the Senate finds him guilty of "high crimes and misdemeanors," remove him from office.

The Definition of "Significantly Curtailed" The word "significantly" appears from time to time in debate resolutions. In one sense it means "substantially." It is an abstract term that de­ mands a value judgment about the mechanics of each affirmative plan. One initial observation is pertinent here. Since the significance of any given curtailment must be judged in the context of an actual debate, the

-20- negative may sometimes yield to the temptation to dismiss an unusual case or difficult affirmative analysis by claiming that it does not involve a significant curtailment, when in fact it does.

It has been suggested that an affirmative must construe this year's resolu­ tion in such a way that a reasonable man who is well informed about the power of the presidency would consider a proposed curtailment as a substan­ tial and considerable change. Of course, this may not solve the problem; there is no single formula that could resolve the significance question for the entire range of affirmative cases.

It should be noted also that the requirement that there be a significant curtailment may not be met simply by showing that significant advantages would result from the curtailment embodied in the plan. It may be argued that the topic requires that the quantum of presidential power be reduced and that only after that requirement is met, is it relevant for the affirma­ tive to argue significance.

The words "significantly curtailed" support three important points: First, it appears that the affirmative may propose curtailment of only part of the President's power, as long as it is a significant part of the totality of the power of the presidency. Thus, the affirmative, in effect, may read into the resolution following the words "power of the presidency" such qualifying phrases as "to control foreign trade, intelligence-gathering, or the employment of U.S. military forces abroad."

Second, depriving the President of a power when there are other ways in which the same degree of control or influence can be exercised would not be a significant curtailment. For example, if there are two equally ef­ fective ways for the President to have the Central Intelligence Agency withhold critical data, it would not be significant to destroy one and leave the other intact.

Finally, the affirmative, in formulating its plan to restrict presidential powers, must take into account the restrictions on presidential powers that exist now. In other words, the affirmative would not want to suggest de­ vices now operating to achieve the same restrictions that the affirmative plan would supposedly bring about.

The recent action of Congress on presidential impoundment provides one example of how the exercise of a power by the President has been curtailed.36/ President Nixon impounded (refused to spend) funds appropriated by Congress� for specific programs. Congress decided to curtail this exercise of presi­ dential power and as a result the recent Impoundment Control Act explicitly limits presidential impoundments. Prior to the curtailment enacted by Con­ gress, a number of such impoundments were revoked by the courts.

-21- Ways to Curtail Executive Power There are at least four types of action the affirmative could advocate as a means of curtai}ing presidential powers. First, the affirmative could reconunend depriving the executive of one or more specific powers. For example, the plan might offer a constitutional amendment to forbid the President to employ armed forces outside the continental United States and its possessions under any circumstances. Second, the affirmative might argue for restricting executive powers so as to deprive the Presi­ dent of options in certain situations and require him to act in a specific limited fashion. An example of this kind of curtailment is contained in the recently enacted War Powers Act. Third, the affirmative might advo­ cate transfer of certain powers from the President to Congress. This is perhaps the most obvious affirmative approach. Finally, the affirmative could argue that a power should be taken from the White House and given to the courts or to some other governmental institution. For example, the Organization of American States might be vested with a veto over the use of American armed forces in Latin America, or the United Nations could be vested with a veto over the use of American force anywhere in the world. These approaches to curtailing presidential power suggest interesting ques­ tions. Can the affirmative be sure that the best way to achieve its ob­ jectives is the complete denial of power rather than its transfer? If transfer is involved in the affirmative plan, the negative may contend that the benefits of its proposal are brought about by extra-propositional plan provisions on the theory that transfer of power is not merely a cur­ tailment of it. On the other hand, an affirmative may argue that one way to curtail the power of the President is to substitute a nonexecutive agency as a repository of the power previously held by the President; that such a substitution, or transfer, of control is a single, unbroken, unitary action; and that the unitary action is an appropriate mechanism by which the objectives of curtailment can be brought about.

Final Observations If the affirmative decides, as most affirmative teams probably will, to build its case on the contention that Presidents have abused their powers, the negative may challenge the affirmative to show why limiting presiden­ tial power is necessary to achieve the affirmative's objectives. Can the advantages be gained under the present system through a simple change in policy by the President in response to public demand or through removal of an offending President by impeachment? The affirmative has an obligation to present an inherent indictment of the present system--to demonstrate why failure to curtail existing presidential power will lead to harmful results. If the affirmative argues that the President will abuse his power, and that it should be placed elsewhere, the negative may demand evidence that

-22- Congress, or the appropriate body to which the power would be transferred, would not abuse it and would be willing to carry out the objectives of the statute or the amendment instituting the curtailment of presidential powers.

The affirmative may argue initially that presidential self-restraint is an inherently defective mechanism because it can and may be abandoned at any time. When there is such an abandonment, the advantages of a more restrained policy no longer accrue. If the negative replies that a Presi­ dent can or should be persuaded to exercise self-restraint as a permanent policy, the affirmative may in turn argue that such a curtailment is not significant--that a President cannot bind his successors. But in some situations the fact that the curtailment is brought about by presidential renunciation may be irrelevant; if power is the ability to make choices on policy matters and a President restricts his ability to make such choices, presidential power has been reduced--perhaps significantly--at least so long as the incumbent is in office.

President Kennedy attempted to limit his options at the conclusion of the Cuban missile crisis with the following pledge: "We, on our part, would agree--upon the establishment of adequate arrangements through the United Nations to insure the carrying out and continuance of these arrangements, ... to give assurances against an invasion of Cuba."37/ The required UN super­ vision was never established; however, a presidential pledge of this kind, if converted into a permanent international agreement, would appear to meet the requirements of the debate resolution.

Finally, debaters should keep in mind that the resolution refers to cur­ tailment of the power of the "presidency." Does this mean curtailment of powers vested directly in the presidency by the Constitution, or does it include powers vested by the Constitution in Congress and delegated by Congress to the President? For example, the basic power to enact laws for the payment of government subsidies is vested by the Constitution in Congress, but Congress has delegated a part of this power to the President. Congress also has the basic power to fix government salaries, for example, but it has authorized the President to increase them within certain limits and subject to congressional veto. The Constitution also gives Congress the power to fix duties on imports, but for many years the President was authorized to change import duties within ranges specified by Congress. In other words, these are examples of powers of Congress which may be exercised by the President within specified limits and only so long as Congress authorizes him to do so.

Assuming that the powers of Congress which are exercised by the President are among the powers of the "presidency" referred to in the debate resolu­ tion, debaters should keep in mind the limitations placed on many such powers. For example, Congress may authorize the President to exercise a given power in a limited way or for a brief period, for a period of years or for an indefinite period. In the event such a power is narrowly limited or is delegated for a brief period, the question arises whether curtail­ ment of it would be significant.

-23- II. THE GROWfH OF PRESIDENTIAL POWER, 1940-1974

In the introduction, some notable examples of growth of presidential power in the nineteenth century were discussed, principally the exercise of pow­ er by President Lincoln during the Civil War. It is appropriate to say that it is in the twentieth century that an al­ most unbroken growth in presidential power occurs, not alone in foreign policy and national defense, but in domestic affairs as well.

From 1900 on, expectation mounts that the national government will become more active, and will assume a larger responsibility for social welfare, the health of the economy, and the advancement and protection of indivi­ dual rights and equality. In foreign affairs, the twentieth century marks the emergence of the United States as a world power whose responsibilities toward other countries of the world are very nearly monumental, certainly after the end of World War II. Consequently, issues of foreign policy and of national defense grow in number, and increase geometrically in complexity. Certainly, the role of Congress, and that of the Supreme Court, have be­ come much more substantial in the twentieth century. In domestic affairs, Congress not only provides the basic legislation and the necessary appro­ priations, but also oversees the work of the executive branch, a responsi­ bility which Congress takes very seriously. In foreign affairs, Congress, especially the Senate, serves as an adviser to the President and a check upon his use of power. The initiative gener­ ally rests with the President, rather than with Congress, but the advising­ checking function, the function of giving or withholding consent' for what the President is doing, is a function of very great significance which may have tremendous, though belated, impact upon a presidentially determined course of action. With respect to national defense, the role of Congress may seem small in those instances where the President has decided to commit troops for use in combat, either as an exclusively American venture, or as a part of an international undertaking, as in Korea, but the role of Congress is very large in the funding of weapons and military installations and facilities, and in determining the size and character of the armed services, as, for example, the move to a volunteer army and the simultaneous abandonment of the draft.

-25- The Supreme Court has become strongly identified with the advancement of individual rights, notably in the areas of desegregation of schools and other public facilities, due process in criminal trials, equality of op­ portunity, and generally in the areas of First Amendment rights. Through its decisions incorporating guarantees in the Bill of Rights into the Four­ teenth Amendment's provisions concerning due process and equal protection, the Court has established itself as potential arbiter of many disputes arising between a citizen and his local or state government.

Even with full recognition of the increasing importance of the congres­ sional and Court roles, it is impossible to deny the ascendancy of the President, in domestic, foreign, and national defense affairs. Initia­ tives rest with the officer of government who can act expeditiously, with information, and, at least in foreign affairs, with a high degree of con­ fidentiality.

Growth in the Domestic Powers of the President

The Legislative Powers of the President. As expectations concerning the domestic role of the national government have grown, the initiative in proposing legislation has passed, for most of the time, to the President who, as chief executive, is in a position to observe policy in action, as executed by the agencies of government, and to recommend needed changes in policy. Since the President is regarded as the only officer of govern­ ment who is elected on a nationwide basis, 38/ it is believed by many that he alone perceives the entirety of interest�in conflict, and he may be therefore uniquely qualified to ascertain the national interest.

E. S. Corwin writes, "The revival of presidential leadership in legislation is one phase of the revival of legislation of national ·scope. "39/ · And, he continues,

The nationalization of American industry, the necessity of curbing monopolistic practices resulting from this de­ velopment, the conservation movement of the first Roose­ velt, the rise and consolidation of the Labor movement, the altered outlook on the proper scope of government func­ tion that the Great Depression produced, and finally two great wars and their aftermath have all conspired to thrust into the foreground of our constitutional system the dual role of the President as catalyst of public opinion and as legislative leader.40/ Theodore Roosevelt came to the presidency from the governorship of New York state. He had some strong convictions as to needed national legislation, particularly in the regulation of big business and in conservation. His view of the presidency as the steward of the people, and his personal

-26- qualities of energy, self-confidence, and assertiveness, combined to make him take an active view of the constitutional grants of legislative power to the President that, "He shall from time to time give to the Congress information of the state of the Union, and recommend to their considera­ tion such measures as he shall judge necessary and expedient ....41/

Roosevelt construed these words as imposing a duty, rather than merely con­ ferring a power. In the Autobiography, he wrote:

In theory the Executive has nothing to do with legislation. In practice as things now are, the Executive is or ought to be peculiarly representative of the people as a whole. As often as not, the action of the Executive offers the only means by which the people can get the legislation they demand and ought to have. Therefore a good executive under the present conditions of American political life must take a very active interest in getting the right kind of legislation, in addition to performing,his executive duties with an eye single to the public welfare.42/

Roosevelt's legislative efforts were frustrated in part, because his own party had been so long in control of Congress that the leadership of both houses and the chairmen of the standing committees were very senior members who took, not surprisingly, a rather condescending view of the presidency and of any President.

Woodrow Wilson, in contrast, found his legislative initiatives much more successful because his party was newly in control of Congress, after many years of being in the minority, and the members of his party generally stood in considerable respect of him, as scholar and as successful presi­ dential candidate. To the techniques employed by Roosevelt (and earlier Presidents) of writing and speaking to party friends in Congress, holding breakfast and luncheon conferences in the White House, and providing information to committees and to individual members, Wilson added a new touch, emulated by his suc­ cessors, of addressing Congress on the state of the union in person. He appeared in person to give other messages to Congress, often beginning or ending with such words as "I have come to you as the head of the government and the responsible leader of the party in power to urge action now .... "43/ Thus, President Wilson made clear his own conception of the presidency as closely similar to the British premiership, and his conviction, identical with that of Theodore Roosevelt, that the chief executive had the constitu­ tional right and duty to guide legislation. Such important measures as the Federal Reserve Act, enacted by Congress in 1913, were largely drafted in conferences at the White House between

-27- President Wilson and members of Congress, many of them initially quite hostile to the President's proposal.

That the drafting of legislation might occur in the executive branch, with or without congressional participation, had already become general know­ ledge during the administration of Theodore Roosevelt.44/

Toward the end of President Wilson's second term, he vetoed a bill, sub­ sequently to become law, the Budget and Accounting Act of 1921, 45/ which significantly increased the power of the President in the formulation and execution of the national budget. President Wilson's objection to the bill was on the constitutional ground that it established a position in the executive branch--that of Comptroller General of the United States-­ the occupant of which was to be subject to removal only by joint action of the two houses of Congress. On all other counts, he favored the bill, the origin of which lay in President Taft's Commission on Economy and Effi­ cency in Government which reported in 1912. 46/

The Budget and Accounting Act was indeed an admission by Congress that it was, by composition and by the manner in which it worked, unsuited to the increasingly difficult tasks of holding national governmental expenditures within limits and of making sensible allocation of government funds. The Act provided that the President should submit to Congress an annual over­ all budget for the national government. This budget would be prepared by the Bureau of the Budget (BOB) for submission to the President, then sub­ mission by him to Congress in an annual budget measure. Only one committee in each house was to act upon appropriations. The BOB, established by the 1921 Act, was located in the Department of the Treasury until, pursuant to the recommendation of the President's Committee on Administrative Manage­ ment, it was transferred to the newly created Executive Office of the Presi­ dent in 1939. The initial location in Treasury, and the subsequent trans­ fer to the Executive Office, can be taken as indication of the early pre­ occupation with BOB control over increases in expenditures, and a later interest on the part of President Franklin D. Roosevelt in using the BOB and the development of the budget to assure that the President's program priorities were reflected in the budget itself.

A very good account of the early essentially simple function of BOB through the 1920s and the more complex role it began to play in the middle and late 1930s can be found in Richard Neustadt's two articles in the American Poli­ tical Science Review on FDR's use of the BOB in developing central clear­ ance of legislative proposals to formulate the President's legislative program, in tandem with its developing the annual budget.47/

The initial impetus for central clearance came from the House Appropria­ tions Committee in November 1921. The chairman expressed his concern on the occasion of the committee's receiving requests from an agency to autho­ rize diversion of appropriated funds; he expressed the Committee's desire

, -28- that the requests be scrutinized by the Bureau of the Budget in order that the requests not result ultimately in increased spending. BOB, under directive from the President, then issued Budget Circular 49 requiring that all agency proposals for legislation, or expression of agency views on legislation, the effect of which would be "to create a charge upon the public treasury or commit the government to obligations which would later require appropriations" be submitted to BOB before being sent to Congress.48/ BOB would then ascertain the relationship of the proposals and views to the President's financial program, make recommen­ dations to the President, and advise the agencies of the President's posi­ tion. No agency proposal for legislation was to go forward unless the President approved; any statement of agency views was to be accompanied by a statement of the advice given by BOB on its impact on the President's financial (or budgetary) program. During the terms of Presidents Calvin Coolidge and Warren G. Harding, the central clearance established in Budget Circular 49 was negative in func­ tion, for example, it was used to assure that increases in spending would not occur by inadvertence. With the inauguration of FDR, central clear­ ance ·came to have a positive purpose, that of assuring that only legisla­ tive proposals "in accord with the program of the President" went forward. Those proposals not approved by the President were to be stopped by BOB. Some others might be allowed to go to Congress, but without presidential endorsement. Only those "in accord with the program of the President" would be advanced as the administration's measures. Thus FDR sought to have the administration's stand made known on agency proposals, "not only in his own defense but for the sake of everyone concerned, including the Congressional leaders."49/ By 1939, BOB cleared agency reports on 2,448 pending bills--in contrast with the processing of only 300 such bills in 1935, when only the earlier form of financial clearance was in force. Also, in 1939, BOB handled 438 drafts of proposed legislation, in contrast with 170 in 1935. These quan­ titative indices of BOB activity can be supplemented by BOB files and White House correspondence to demonstrate that central clearance was reaching wider and wider. The effectiveness of the central clearance function was strengthened when in 1938 BOB came into control of agency communications to and from the President on signature or veto of bills enacted by Congress. While BOB had always been consulted on the question of the President's signature or veto of bills, it was in 1938 designated as the official presidential agency on bills coming from Congress. In a circular issued on January 19, 1939, BOB advised agencies that, by directive of the President, Bureau requests for agency opinions were to receive absolute priority: agency replies were required to be delivered within forty-eight hours, with speci­ fic recommendations backed by as much factual information as possible.

-29- If the agency recommended veto, or pocket veto, it was required to submit a draft veto message, or memorandum of disapproval.

The joining of the central clearance function to that of acting as presi­ dential agent on agency advice concerning bills resulted in BOB's building a gen�ral comprehensive record on bills, unmatched anywhere else in govern­ ment. In consequence, BOB became an unrivaled source of information, use­ ful at both ends of Pennsylvania Avenue. Its central position in the pro­ cess of the President's signing or vetoing a bill reinforced the importance of its work on clearance.

The death of FDR in April 1945, began.a period of uncertainty in which a new President, confronted by a great range of problems, not least of which was the election in 1946 of a Republican Congress, necessarily spent some months, perhaps more than a year, orienting himself not only to what he had to do as President, but to the instruments best suited to his needs for achieving his purposes.

For a time, it appeared that President Truman did not fully understand the functions of BOB, and in addition found himself much more comfortable with the men he had appointed to high positions such as the directorship of the Office of War Mobilization and Reconversion. Moreover, the creation of the Council of Economic Advisers in 1946 provided a new agency within the White House to which the President looked for useful ideas in discharging his newly delegated responsibility as manager of the national economy.

Scarcely two years later, as Neustadt writes, "the Bureau was [once again] entrenched as the prime source of presidential staff work on... legislative programs, its clearance tasks, especially at proposed and pending stages, more actively developed and more central to the President's concerns than ever in their history."50/ Neustadt believes that the reappearance of the legislative process as the key government preoccupation, the attrition or demise of other staff agencies,. and the personality of the then Director of the Budget, James E. Webb, were responsible for the reemergence of BOB.

Both Presidents Truman and.Eisenhower relied upon the Bureau of the Budget to solicit for them agency proposals for legislation, at the same time that BOB obtained estimates of needed spending from the agencies. These pro­ posals were made into a legislative program to be transmitted to Congress by the President. For the first time, then, an integrated legislative pro­ gram was sent by the President to Congress. Earlier Presidents had made suggestions: in the administration of Theodore Roosevelt it was known that bills were being drafted in the executive branch, so, also, in Woodrow Wilson's administrations and those of Franklin Roosevelt. Truman's use of BOB was such that the President established a legislative program which was also a set of priorities for the national government. This was con­ tinued by President Eisenhower.

-30- In the presidency of Lyndon Johnson, BOB became but one presidential agency for the drafting of legislation. President Johnson's objectives in national legislation were so numerous that he had to draw upon more than one agency.

But this in no way detracts from the thesis argued by Neustadt and by Corwin, that is, that whenever the national legislative process is the key govern­ ment preoccupation, the President will have an active role in formulating legislative proposals, and he will find the executive agencies which he needs to help him in the formulation.

The President's Veto Power. The Constitution provides that the President may veto legislation passed by Congress.SI/ In the event of adjournment of the two houses within ten days of legislation being presented to the President, the President may let the legislation die without his signature (a "pocket" veto); at the next session, legislation subjected to a pocket veto must begin again its progress through the two chambers.

The President's veto is a suspensive one, that is, it is subject to being overridden by a two-thirds vote of the two houses. When the President vetoes, except in the case of a "pocket veto," he must return the bill, with a statement of his reasons for the veto, to the house in which the bill originated.

Although Presidents before Andrew Jackson very occasionally vetoed legis­ lation on policy, rather than on constitutional grounds (neither President John Adams nor President Thomas Jefferson used the veto at all), it was Andrew Jackson who asserted the President's right to veto because he dis­ agreed with the policy proposed. After the Civil War, the use of consti­ tutional bases for the veto almost entirely disappeared.

For more than 150 years after the adoption of the Constitution, it was argued that Presidents could not veto revenue bills, since the Constitu­ tion clearly entrusts to Congress the power to raise revenues and to spend. However, Franklin Roosevelt vetoed a taxing measure on February 22, 1944. To an accompaniment of excited discussion and action in Congress, includ­ ing the resignation of Senate Majority Leader Alben Barkley (D-Ky.), the veto was overridden and Senator Barkley was reelected majority leader. When President Truman vetoed a revenue bill on June 16, 1947, the veto was sustained. Examination of vetoes indicates that Congress has overridden in only one out of ten cases. The two-thirds requirement is plainly a substantial hurdle. Moreover, the veto must be recognized as a positive instrument of presidential leadership. As Professor Herman Finer has written: It would be no wonder if the veto power were not only dis­ criminatory among bills already passed, but if it became an ever-present, if unuttered, threat to promoters of bills (unless they were quite certain of a two-thirds majority in the ultimate resort), and tended to become an instrument of

-31- bargaining for other legislation--an instrument to be propitiated by timely and obvious surrenders. This, in­ deed, has happened.52/ From time to time, proposals have arisen in Congress to alter the veto power, sometimes by reducing the required vote to override, sometimes by conferring additional power upon the President in the form of the item veto. None of these congressional efforts has succeeded.

On the constitutional requirement of a two-thirds vote in both houses to override, it has apparently remained the congressional judgment that a presidential veto should be taken very seriously. On the matter of granting the President the item veto, this proposal has usually been made with respect to taxing and spending laws. Although it has sometimes been suggested that the item veto could be conferred upon the President by simple legislative act--in the same manner as the autho­ rity given the President to propose executive reorganization plans, which become law unless disallowed by the hous.es by concurrent resolution within a stipulated time--the consensus remains that the additional power could come only in consequence of a constitutional amendment.

The Power to Impound. No more controversial power has been exercised by the President in the last five years than that of impounding funds.

Since much of the federal budget is approved by Congress far in advance of expenditures, changes in requirements, greater efficiency, or other developments may reduce or eliminate the need for the amounts appropriated. Thus the Antideficiency Act of 1905, as amended in 1906 and 1950, autho­ rized the President to "reserve" appropriations "whenever savings are made possible" by such events.53/ However, Presidents impounded funds long before this statutory authorization was enacted.

As early as the administration of President Jefferson, funds had been im­ pounded. Jefferson's impoundment was a postponement for several months of the expenditure of funds appropriated for gunboats. Jefferson argued that the emergency had passed, and that it was feasible to wait a bit until better models were developed.54/

President Ulysses S. Grant withheld funds allocated for rivers and harbors in 1876, on the ground that the expenditure was not obligatory and the de­ pressed state of the economy made such withholding wise.SS/

Franklin Roosevelt, at the outset of World War II, impounded appropriations for domestic public works because they were not directly related to the war effort. Roosevelt emphasized that his act was not intended to assert for the President the power to veto an item in a bill.56/

-32- President Truman impounded Air Force funds in 1949, in consequence of a specific option granted him by act of Congress. President Lyndon Johnson secured the tacit consent of leaders of Congress to postpone, in 1967, the spending of a $5. billion appropriation.

During the administration of President Richard M. Nixon, the impounding power was used more often--impoundment affected at least fifteen national government programs--and for ends not previously cited by Presidents in impounding appropriated funds. The impoundments substantially affected domestic programs, including highway, health, manpower, housing, urban, educational, and environmental programs. Funds for defense and for the space program were also impounded.

By 1973, President Nixon had legal advice to the effect that he might im­ pound to help keep down the public debt, save taxpayers' money, and reduce or eliminate wasteful or ineffective national programs. In sum, he might impound not simply in his capacity as commander-in-chief but also in his capacity as chief executive.57/

On the other hand, it has been argued that many impoundments for such broad purposes were not within the intent of the Antideficiency Act or were inconsistent with congressional policy expressed in subsequent legis­ lation. On the question of whether the power to impound is vested in the President by the Constitution, congressional critics of recent impoundments quote a statement by Supreme Court Justice William H. Rehnquist, made in 1969 when he was an assistant attorney general, as follows: "With respect to the suggestion that the President has a constitutional power to decline to spend appropriated funds, we must conclude that the existence of such a broad power is supported by neither reason nor precedent." 58/ More than 100 lawsuits against impoundments were filed during 1972-73. Many of these cases have been decided by the lower courts (most of them against impoundment) and at least one test case has been argued and is now pending in the U.S. Supreme.Court.

Meanwhile, Congress passed the Impoundment Control Act of 1974. 59/ Prior to this action on July 12, 1974, the Antideficiency Act authorized the President to set aside "reserves" to provide for "contingencies, or to effect savings whenever savings are made possible by or through changes in requirements, greater efficiency of operations, or other developments subsequent to the date on which such appropriation was made available."

The new legislation, among other things, deleted "other developments" as a basis for impoundments and added the following prohibition: "Except as specifically provided by particular appropriation acts or other laws, no reserves shall be established other than as authorized by this subsection."

In addition to this limitation on the power of the President to "reserve" appropriations, the new law provides a procedure for "deferral" of an

-33- expenditure (which can be for a maximum of one year) and for "rescission" of an appropriation in the event an expenditure is to be delayed beyond a fiscal year.

In the case of a proposed "deferral" the new law requires the President to send Congress a message explaining the proposal and if either the House or Senate disapproves it the President is directed to make the funds avail­ able.

In the case of a proposed "rescission" the President must ask the Congress to rescind (cancel) all or a portion of the appropriation involved.

Other provisions of the Impoundment Control Act authorize the Comptroller General to monitor reserves and deferrals and to bring suits if he finds such suits necessary to require the executive branch to make funds avail­ able in accordance with the new law.

Development of Presidential Powers in Foreign Affairs

Many observers trace the recent trend toward presidential dominance in foreign affairs to President Franklin Roosevelt and World War II. In fact, earlier Presidents, going all the way back to President George Washington, had exercised initiatives in foreign policy in light of the powers conferred in Article II of the Constitution (for example, to negotiate treaties and receive ambassadors). After World War II, the heavy responsibility of the United States in foreign affairs was demonstrable as never before. Foreign policy became a major preoccupation of the U.S. government. And in this area of major preoccupation, Presidents played a leading role--by consti­ tutional right and practical necessity.

The Use of Executive Agreements. A major device used by President Franklin Roosevelt and his successors is known as the "executive agreement." Such an agreement, which has the force of·a treaty, is an agreement negotiated by the President with a foreign power but, unlike a treaty, it is not sub­ mitted to the Senate for ratification.60/ W. Stull Holt, professor of history, University of Wisconsin, points out that executive agreements were relatively rare before World War II. 61/ After 1940, presidential use of executive agreements became a routine practice. Robert S. Dahl lists at least fifteen significant foreign policy decisions reached by President Roosevelt between 1940 and 1945 which were not sent to Congress for prior approval.62/ At the time these executive agreements were being made there was heated debate about their legality, and even today some scholars continue to question them.

Executive agreements may be considered in two categories: (1) those, it is argued, which undermined our neutrality prior to Pearl Harbor, and (2) those reached during wartime conferences at Quebec, Casablanca, Teheran, Yalta and Potsdam.

-34- Executive Agreements Prior to Pearl Harbor: The Destroyer-Base Agreement. A classic executive agreement cited by many observers is the destroyer­ base agreement negotiated between President Roosevelt and Prime Minister Winston Churchill in the summer of 1940. At that time, the United States was a neutral power and Great Britain was struggling alone against the Axis powers. The success of Britain's struggle depended largely upon her ability to protect her shipping against German submarines. Britain's friends in this country argued that while the destroyers were of no im­ mediate use to us they might prove the salvation of Britain in combating the threat of German submarines. In an executive agreement, President Roosevelt promised to turn the fifty destroyers over to Britain. The British, for their part, made outright gifts of sites for use as American military bases, eight in all, stretching from Newfoundland to British Guiana.

The destroyer-base deal touched off a furious debate in the United States. Few Americans questioned the value of the British bases in defending the United States from possible attack. But many Americans sharply challenged the way in which the transaction was made, by a simple executive agreement, without the advice and consent of the Senate. Why did Roosevelt use this approach rather than the treaty route? Professor Arthur M. Schlesinger, historian and former adviser to Presidents Kennedy and Johnson, among others, concludes that the President and many of his foreign policy ad­ visers believed, at the time, that this transaction would not have been sanctioned by the Senate.63/ Thus, the executive agreement was used to circumvent the Senate. Nevertheless, Congress appropriated money to de­ velop the naval sites, with little delay.

Since the United States was a neutral, and Britain a belligerent, a serious question arose. Did the President have the authority to make this agree­ ment? Attorney General Robert Jackson, at the President's request, de­ livered an opinion, largely based upon domestic law, which upheld the President. Other authorities, however, disagreed on the question.64/ Diplomatic historian Thomas Bailey concludes that the transfer of fifty warships from the U.S. Navy to a belligerent power was not only a gross violation of neutrality but also of pre-Hitler international law.65/ Churchill later concluded that Hitler could have found justification in this act for a declaration of war.66/ In retrospect, it is generally con­ ceded that the destroyer-base deal meant that the United States virtually abandoned all but the pretense of neutrality. In light of later steps such as Lend-Lease, the President and perhaps a majority of Congress, while not ready to join the war, were willing to gamble in order to as­ sist Britain.67/ The Wartime Agreements. After American entry into World War II, President Roosevelt participated with other Allied heads of state in a series of major conferences at Quebec, Casablanca, Cairo, Teheran, and Yalta, and President Truman did the same at Potsdam in 1945. In the absence of a

-35- German peace treaty and even when treaties were signed later with Italy and Japan, these wartime agreements produced de facto settlements without the advice and consent of the Senate. Why wa�the Senate excluded from participating in these agreements? The reason given was that most of the discussions and agreements at these conferences concerned military commit­ ments, and had to be kept secret.68/ Later however, as details of the agreements became known, it was argued that many were political rather than military and should have been subject to the treaty process.

Of all the conferences, Yalta generated the most criticism. In January­ February 1945, Roosevelt, Churchill, and Stalin met at Yalta on the Crimean Peninsula. By this time, the Allied military drive had reached German soil, and the end of the war in Europe was in sight. The conclusion of the Allied military effort in the Pacific seemed much farther off, and its end was cer­ tainly more difficult to predict.

Roosevelt's personal role at Yalta has been the subject of much argument. On one hand, it is argued that Roosevelt placed too much trust in his ability to deal with Stalin. The United States was, in fact, taken in by Stalin, who never intended to keep the pledges he made there. Another charge is that Roosevelt was a sick man (he died within three months of the conclusion of the conference) and thus was not competent to make the momentous decisions which the conference required. Roosevelt's defenders argue that many of the agreements reached at Yalta were sound under the circumstances and were the best that the President's advisers could nego­ tiate at the time. It is also argued there is no evidence that, despite the President's failing health, he was in any real sense physically incap­ able of performing the tasks required of him.

More specifically, much of the criticism directed against the Yalta agree­ ments centered around two principal areas--the Polish and Eastern European accords and the Far Eastern negotiations. The published announcement at Yalta seemed to herald a new day for Poland and the other liberated nations of Central and Eastern Europe, which at the time had been either partially or wholly liberated by Soviet troops. The three heads of state agreed to facilitate "free elections" in those countries. Stalin later·ignored these pledges, and the countries were absorbed into the Soviet system as puppet states. Roosevelt was accused of having sacrificed Poland and other states to Soviet imperialism. On the other hand, it was agreed that Stalin, with a powerful army occupying those countries, was in a position to work his will anyway.

The charges directed against the Far Eastern agreements centered around the price that the United States was willing to pay to get Soviet partici­ pation in the war against Japan. Roosevelt's military advisers, not real­ izing how near Japan was to defeat, calculated that a successful assault upon Japan proper would take about eighteen months and cost up to a million American casualties. If Soviet forces could be persuaded to att�ck Japanese

-36- forces in Manchuria and Korea, they would pin down large numbers of troops and doubtlessly save the lives of large numbers of Americans.

Stalin was in a position to drive a stiff bargain. The terms, veiled in secrecy, were not published until a year later. In return for a pledge to enter the Pacific war three mont.hs after Hitler's defeat, the Soviets were promised that: (1) Outer Mongolia, once part of China, was to remain a Soviet Satellite, (2) the territories and spheres of influence which Russia had lost to Japan in 1905 were to be returned, and (3) the Kurile Islands, once partially claimed by Russia, were to be given to the Russians. Nationalist China, whose acquiescence was necessary to carry out these con­ cessions, was not a party to these agreements or even aware of their exis­ tence at the time. To secure Nationalist China's consent, Stalin pledged to negotiate a treaty of friendship with Nationalist China--a treaty which was concluded in August 1945.

Critics condemn these agreements on two grounds: that they should not have been undertaken without China's knowledge, and that later events proved Soviet military participation against Japan was unnecessary. In response to the latter criticism, it has been said that the President had to rely on the advice of his military advisers regarding the need for Soviet military aid. Concerning Nationalist China, that power had been urging Washington to promote a friendly understanding with the Soviet Union since 1943, and was pleased when this was gained in August 1945.

Growth of Congressionally Sanctioned Presidential Power. President Roose­ velt exercised great power in foreign policy, usually with congressional sanction. For instance, after the President had proclaimed American neu­ trality in November 1939, Congress, at the request of the President, repealed the arms-embargo provision of earlier neutrality legislation. The easing of this provision allowed American arms manufacturers to sell munitions and other war materials to the belligerent nations on a cash­ and-carry basis. It was clearly understood in Congress that only Britain and France had the merchant fleets available to pick up and carry arms from American ports. Thus, even before the destroyer-base deal, the Roose­ velt Administration, with congressional approval, was stretching American neutrality in order to assist the Allied powers.

Following the destroyer-base deal, a bill to provide what subsequently became known as Lend-Lease was introduced in Congress at the urging of the Roosevelt Administration. This involved furnishing arms and other assistance, with repayment on a long-deferred basis. Despite vehement opposition, the bill carried. The Lend-Lease Act, which led to the ex­ penditure of $50 billion, must rank among the most momentous acts ever passed by Congress.69/ Bailey states that the Lend-Lease law "proclaimed .a tacit non-shooting alliance with Britain and other nations whose resis­ tance to aggression warranted American support." Unlike the destroyer-

-37- base deal, Lend-Lease was not an executive agreement, but a policy sanc­ tioned by a majority in Congress. At the same time, Lend-Lease gave tre­ mendous foreign policy power to the President. He was to select the na­ tions entitled to receive such massive assistance, and this led to a series of executive agreements. For instance, shortly after Hitler's invasion of Soviet Russia in June 1941, the Roosevelt Administration, despite protests in Congress and throughout the country, extended Lend-Lease assistance to the Russians, the total amount of which finally reached $11 billion.

Congressional Support for Postwar International Cooperation. Following American entry into World War II, Congress cooperated with the executive branch in an effort to make sure that the United States would not return to an isolationist posture as it did following World War I. Senator Tom Connally (D-Tex.) and Congressman J. William Fulbright (D-Ark.) introduced resolutions in their respective chambers committing the United States to future international cooperation for the preservation of peace. These congressional resolutions gave support to plans which eventually resulted in the creation of the United Nations. In addition, Congress cooperated in such matters as the International Monetary Agreement of 1944 and the General Agreement on Trade and Tariffs in 1947. While Congress provided broad foreign policy authorizations during the period from 1940 to 1967, Senator Fulbright later concluded that practically all major foreign policy decisions were made by the President.70/

To summarize, the period from 1940 to 1945 was a time of international cr1s1s that inherently enhanced the foreign policy power of the President. Beyond this, the continued use of executive agreements forged a foreign policy approach that virtually made the President independent from Congress on many major issues. Finally, even when Congress participated, its autho­ rizations by their unavoidable broadness further strengthened the presi­ dential hand.

The Cold War--Spur to Presidential Initiatives. During World War II, there were two separate goals of American policy. The first was to win the war against the Axis powers. The second was more long range--to develop methods to harmonize the future interests of the major powers. On the American side there was the view, now regarded by many as wishful thinking, that the war­ time cooperation achieved within the Grand Alliance (United States, Great Britain, and the Soviet Union) would survive the destruction of the Axis powers, and that ways could be found to settle disputes between ourselves and the Soviet Union. The United Nations was envisioned as the best way to maintain world peace. As events were to prove, the assumptions on which these hopes were based were challenged almost immediately after the war by the intransigence of the Soviet Union.71/ The close relationship between the United States and Britain was not matched by a similar relationship with the Soviet Union. In retrospect, some observers contend that the Grand Alliance could not keep the peace because it never existed in the first place.72/

-38- Soviet actions in the United Nations and elsewhere convinced the U.S. government and a growing number of Americans that a "get tough" policy was needed to counter Soviet policy. The Truman Doctrine marked the be­ ginning of an active attempt by the United States to "contain" the Soviet Union--to hold the U.S.S.R. and its satellites within existing'boundaries. As crises developed in one form or another, President Truman reacted with strong executive leadership.

The Truman Doctrine was inaugurated on March 12, 1947, when President Tru­ man, in an address to Congress, asked for an appropriation of $400 million to provide economic and military assistance to Greece and Turkey. The Greek government had been engaged since 1945 in a struggle against Commu­ nist forces which were aided by heavy infiltrations from three neighboring countries, all Soviet satellites. During 1946, Turkey was pressed by the Soviet Union to allow it to establish a naval base in the Dardanelles, and there were also territorial demands for concessions at the eastern end of the Black Sea. Fear existed in Washington and London (the British had been giving financial assistance to both Greece and Turkey) of a Soviet drive to make both countries satellites, thus extending Soviet power into the Medi­ terran�an. In late February 1947, the British decided that their economy could no longer stand the strain of Greek-Turkish aid and they informed Washington that they intended to withdraw it. Within days after the British decision to withdraw, President Truman and his advisers decided to fill this vacuum by providing economic and military assistance.

Prior to announcing the Truman Doctrine to Congress and the nation, the President worked closely with congressional leaders.73/ Beyond these ini­ tial consultations, the role of Congress has been characterized as one of legitimating and amending.

As the various Cold War crises arose, Congress deferred more and more to the executive branch. James MacGregor Burns, professor of political science at Williams College, states "while the Greek-Turkish bill was designed to meet an urgent problem in a concrete manner, its implications extended far beyond the immediate purpose of the measure. Those implications were v1s1- ble later in the Marshall Plan, Point Four, and military actions in Berlin, 11 Korea, and Lebanon. 74/

A few months after President Truman requested Greek-Turkish aid, Secretary of State George C. Marshall spelled out the proposal that led to what is often called the Marshall Plan (June 1947). Its origins were similar to those of the Truman Doctrine. The executive responded to what it felt was a crisis by initiating a program and Congress adopted the program in slightly amended form. Seventeen European nations received American economic aid designed to assist in their postwar economic recovery.75/ Congress ulti­ mately appropriated a total of $13.15 billion for the Marshall Plan between 1948 and 1952.

-39- By 1952, European economic recovery had progressed to a point where the Marshall Plan could be phased out. Even before this, American foreign aid and foreign policy had changed. First, several European nations (our NATO allies) were now receiving extensive military aid from the United States. American assistance, ecortomic and military, also reached Asia and other areas of the world. Aid to underdeveloped countries outside Europe--known initially as Point Four or Technical Assistance--was launched in 1949. The outbreak of the Korean War in June 1950, led to extensive military and economic assistance programs in Asia. Generally, once the Korean War began, military requirements took priority in foreign assistance programs; economic aid for development played only a minor role in our total aid programs in the early 1950s. The Truman Doctrine was the first big step taken in U.S. foreign policy to counter the Cold War. Prior to the Marshall Plan, the main Communist threat to Western Europe seemed to be a nonmilitary problem--internal sub­ version. Economic disruption related to the recent war and painfully slow economic recovery enabled the Communist parties in Italy and France to make significant political gains. Thus, a program of economic assistance which promoted economic recovery was deemed to be the most effective method to combat the Communist threat. When Czechoslovakia fell to Communism in a bloodless coup in early 1948, however, the threat of a direct Soviet military attack appeared more likely. By 1948, U.S. and Western European military forces were reduced to low levels by rapid postwar demobilization. Soviet postwar demobilization was not so rapid. The military weakness vis-a-vis the Soviet Union, and the Marshall Plan's emphasis on economic rather than military strength, prob­ ably contributed to Western anxiety concerning Soviet intentions and capabilities. The first step to counter the Soviet military threat was taken when the Brussels Pact was signed in Marc� 1948. Britain, France, and the Benelux countries (Belgium, the Netherlands, and Luxembourg) signed a fifty-year collective defense pact. It soon became apparent that to constitute an impressive warning to the Soviets, such a pact needed the backing of the United States.76/ U.S. participation in the defense of Europe seemed probable when the Sen­ ate in the Vandenberg Resolution of June 11, 1948, voiced the opinion that the United States should participate in regional defense arrangements such as the Brussels Pact whenever these arrangements served our security in­ terests. Senator Arthur Vandenberg (R-Mich.), chairman of the Senate Foreign Relations Committee, actually presented his resolution at the urging of and in consultation with the State Department. Despite the role played by Senator Vandenberg, Professor Robinson maintains that the Truman Administration initiated this policy.2.?J ·

-40- The Vandenberg Resolution was a prelude to the North Atlantic Treaty, an important and ambitious venture in search of collective security. The treaty was signed April 4, 1948, by twelve nations of the North Atlantic and Western European areas; the number was later increased to fifteen when Greece, Turkey, and West Germany were added.78/ The parties agreed to settle all disputes between themselves peacefully and to develop their capacity to resist armed attack "by means of continuous and effective self-help and mutual aid." The heart of the pact was Article 5, which declared that an attack upon one was an attack upon all, and pledged each member in case of such an attack to assist the party attacked "by such actions as it deemed necessary, including the use of armed force." This pledge did not flatly commit the United States to war, or remove congres­ sional power to declare war.79/ It was, however, a moral commitment to assist the pact members for at least twenty years. Although the North Atlantic Treaty was subsequently approved by an eighty-nine to thirteen vote in the Senate, the pact's implications were clearly seen. Opponents of the pact made a determined effort to relieve .the United States of any responsibility to rearm Western Europe, but these proposed amendments were defeated.

To implement the treaty, the North Atlantic Treaty Organization (NATO) was established. Its directing body was the North Atlantic Council made up of the foreign, defense, and finance ministers of the member nations. Early in 1951, military headquarters were set up near Paris (SHAPE--Supreme Headquarters, Allied Powers in Europe) with General Eisenhower as supreme commander. Its purpose was to build a defense force in .Western Europe, not equal to the huge army maintained by the Soviet Union (then roughly 175 Russian divisions plus 60 or more satellite divisions), but strong enough to make the Soviets think twice about going to war; and, if war should come anyway, strong enough to hold the Soviet armies in check un­ til--it was hoped--the strategic airpower of the United States could de­ stroy the Soviet centers of strength.

In September 1950, a few months after President Truman's decision to commit troops to the Korean War, the administration announced its inten­ tion to increase U.S. troop strength in Europe from to two to six divisions. Partly inspired by recent Korean precedent, in which Truman had sent troops without congressional approval, the proposed troop increase in Europe led to what was then called the "great debate" in the United States Senate over the chief executive's right to station troops abroad without congres­ sional approval. Senator Robert A. Taft (R-Ohio) led the opposition. He said:

There can be no question that the executive departments have claimed more and more power over the field of foreign policy at the same time that the importance of foreign pol­ icy and its effect on every feature of American life has steadily increased. If the present trend continues, it

-41- seems to me obvious that the President will become a com­ plete dictator in the entire field of foreign policy and thereby acquire power to force upon Congress all kinds of domestic policies which must necessarily follow.SO/ Opposing congressional attempts to check the President's power to station troops in Europe without congressional authorization, then Secretary of State Dean Acheson made the following statement:

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 must not be interfered with by the Congress in the exercise of power which it has under the Constitution.�

In the end the Senate adopted, by a decisive vote of sixty-nine to twenty­ one, a so-called troops-for-Europe resolution which left the President's power undiminished. Since then, troops have been dispatched to Lebanon, the Dominican Republic, Vietnam, and Cambodia without specific congres­ sional authorization.

In summary� the preceding examples (the Truman Doctrine, NATO, and the Korean War) show that Truman clearly exercised strong leadership in major foreign policy areas. Initiative in policy determination rested with the executive branch. The role of Congress, as was the case earlier under Roosevelt, was that of legitimating and appropriating funds. Even so, the role of Congress was still significant.

The Eisenhower Years. In 1953, the Eisenhower Administration replaced the Truman Administration. On balance, the new administration made no sharp break in foreign policy with the old. Eisenhower and his Secretary of State, John Foster Dulles, both internationalist-minded, encountered most of their congressional opposition in foreign affairs from the "nationalist" wing of their own Republican party. On foreign aid and other kindred prob­ lems which carried over from the Truman Administration, the Democrats in Congress generally provided solid support for key Eisenhower-Dulles foreign policies.

There were, however, clear signs at the start of the Eisenhower Administra­ tion that some members of Congress in both parties felt presidential con­ trol in foreign affairs had gone too far. They felt that the time had come for Congress to check this trend and to this end a constitutional amendment was introduced by Senator John W. Bricker (R-Ohio). The Bricker Amendment, introduced in the Senate in 1953, was not voted on until the following year. The amendment in the form in which it was voted read as follows:

-42- Sec. 1. A prov1s1on of a treaty or other international agreement which conflicts with this Constitution shall not be of any force or effect. Sec. 2. Clause 2 of article VI of the Constitution of the United States is hereby amended by adding at the end thereof: "notwithstanding the foregoing provisions of this clause, no treaty made after the establishment of this Constitution shall be the supreme law of the land unless made in pursuance of this Constitution."

Sec. 3. A treaty or other international agreement shall become effective as internal law in the United States only through legislation by the Congress unless in advising and consenting to a treaty the Senate, by a vote of two-thirds of the Senators present and voting, shall provide that such treaty may become effective as internal law without legislation by the Congress.

Sec. 4. On the question of advising and consenting to the ratification of a treaty the vote shall be deter­ mined by yeas and nays, and the names of the persons voting for and against shall be entered on the Journal of the Senate.82/

In addition to placing checks upon the treaty-making power of the Presi­ dent, the Bricker Amendment was clearly aimed at the President's power to make executive agreements. A substitute resolution, introduced by Senator Walter George (D-Ga.), was aimed at checking executive agreements, but not the treaty-making power. Bricker Amendment supporters argued that there was also a need to place a check upon treaty-making power especially when such provisions interfered with domestic or internal law. They pointed to Article VI of the Constitution, which provides that: "all treaties made... under the authority of the United States shall become the supreme law of the land." They argued that prior to the Roosevelt Administration, Congress and the President had regarded the treaty-making power as a limited one.83/ Recent treaties were superseding long-standing federal and state laws, and even, they believed, the Constitution itself. Fear was also expressed that the United Nations could at some future date legislate policy that would supersede American laws.84/ Supporters of the Bricker Amendment also referred to testimony by Attorney General William Brownell, who stated that some 200 executive agreements had modified or repealed existing internal law.

Opponents argued that, if the Bricker Amendment were adopted, it would upset the delicate constitutional balance that existed between the Presi­ dent and Congress in foreign affairs. In testimony before the Senate Foreign Relations Committee, Secretary of State Dulles argued that the

-43- restriction requiring Senate approval of all treaties and agreements would needlessly tie the President's hands--and complicate the work of Congress.85/ He stated that the United States, pursuant to NATO alone, had made 10,000 � executive agreements.

On February 26, 1954, the Bricker Amendment, which required a two-thirds vote for passage, failed by one vote--sixty to thirty-one.86/ Although the Bricker Amendment failed, the debates at that time ove�presidential power may have influenced President Eisenhower's decision, late in 1954, to seek congressional approval for the use of U.S. forces in the defense of Formosa and the Pescadores Islands.

Prior to the Suez crisis in 1956, the United States, although it urged and cooperated in the creation of the Middle East Treaty Organization (Turkey, Iran, Iraq, and Pakistan joined Britain in a regional defense arrangement in 1955), did not formally join the alliance. One reason which has been advanced is that the United States was unwilling to be drawn too far into the clashing ambitions of the Middle East nations.87/ Thus, prior to the Suez crisis, the United States was willing to support either British or French leadership in the Middle East. But when Britain and France joined Israel in an attack against Egypt,.the United States led a drive in the United Nations which forced the invaders to withdraw. Thus our policy was contrary to that of our British and French allies.

Important consequences of the Suez crisis included disclosure of Anglo­ French weakness and the discrediting of the two powers as a significant force in the Arab-Israeli world. In Washington's view, a power vacuum was developing in the Middle East, and if the United States did not move in, it was felt that the Soviet Union would.88/

The Eisenhower Administration's response to what appeared to be an emer­ gency situation in the Middle East was a proposal that came to be known as the Eisenhower Doctrine. In January 1957, Eisenhower requested con­ gressional authority to provide U.S. economic aid and armed support to any Communist-threatened nation in the Middle East that requested it. Congress subsequently authorized the President to use $200 million for economic and military aid in the Middle East and, if the President deemed that it was necessary, "to use armed forces to assist any such nation or group of na­ tions requesting such assistance against armed aggression from any country controlled by international Communism." As in the debate over the Formosan Resolution, some members of Congress expressed the view that the President not only already possessed the authority to use the armed forces for the purpose requested, but that a congressional resolution authorizing their use might be interpreted as .a limitation of the President's right to under­ take armed action whenever he considered it essential to the "vital inter­ ests" of the nation.

One interesting aftermath of the Middle East Resolution was that, when President Eisenhower sent 14,000 marines to Lebanon in 1958 at the request

-44- of the Lebanese President, he said that American troops were sent "to protect American lives and by their presence there to encourage the Leba­ nese Government in defense of Lebanese sovereignty and integrity." He did not claim that they had been sent under the authority of the Middle East Resolution but on the more traditional basis of the President's au­ thority to employ forces to protect American lives.89/

In suuunary, perhaps the criticism of President Truman's use of troops in Korea plus the simple majority vote for the Bricker Amendment led to some caution during the Eisenhower years in some areas of foreign policy. This was especially true with the Middle East decision discussed here. The failure of the Bricker Amendment to muster the required two-thirds vote left presidential control of foreign policy intact, and for the most part, Congress seemed disposed to support whatever action President Eisenhower felt was necessary in foreign affairs.

The Contemporary Controversy over Presidential-Congressional Powers in Foreign Policy and National Defense. Since 1967, there has been sharp congressional debate over the extent of, and the authority over, presi­ dential exercise of power in foreign affairs. This debate has involved broad constitutional questions concerning the separation of powers in the federal government and presidential authority to make foreign commitments without congressional approval. Congressional resentment over the lack of a voice in the conduct of the war in Vietnam and other related military action in Southeast Asia provoked conflict between the President and Con­ gress. Some members of Congress expressed unease at American foreign commitments outside Vietnam, and concern about the United States's ability to meet all its existing foreign obligations as well as the pressing de­ mands for domestic programs.

Some members of Congress became concerned about the manner in which na­ tional commitments are made. They cited a statement made by former Secre­ tary of State Dean Rusk before the Senate Preparedness Subcommittee in August 1966, when he said, "no would-be aggressor should suppose that the absence of a defense treaty, coRgressional declaration, or U.S. military presence grants immunity to aggression."90/ Open-ended statements of this nature, it was argued, place the United States in the role of world police­ man. The late Senator Richard Russell (D-Ga.) complained:

I know of nothing that is more in need of clarifica­ tion than the present state of the alleged commitment of the United States all over the world. We hear that [a] national commitment has been made because two Presi­ dents have made speeches outlining this policy, or per­ haps two Secretaries of State, or one Vice President; or maybe they all joined in and made speeches, and that con­ stitutes national commitment.... 2.!J

-45- In recent years, critics of U.S. policy have argued that congressional resolutions, government communiques, press conference statements, and foreign aid have been--but should not be--cited as past justification for United States foreign involvement.

Recently there have been congressional attempts to redress the balance between the President and Congress in foreign affairs. In 1969, the Sen­ ate adopted a resolution (S. Res. 85) declaring the sense of the Senate that a "national commitment" could be made only "from affirmative action taken by the legislative and executive branches... by means of a treaty, statute, or concurrent resolution of both Houses ... specifically providing for such commitment."92/ Lacking the force of law, S. Res. 85 amounted to an admonition to the President to obtain congressional authorization prior to making a national commitment, such as making a commitment to employ United States troops in a foreign country or some other significant commitment.

In 1972, the Congress passed a bill introduced by Senator Clifford Case (R-N.J.) requiring the President to submit to Congress the texts of all international agreements in force between the United States government and other nations and such agreements as may be entered into in the future.93/ The Case bill would leave the Congress and its committees free to act upon� the information on international agreements which it receives from the executive in any way that the members of the House and Senate see fit.

Senator Sam Ervin, Jr. (D-N.C.) has introduced legislation which goes further in certain respects than the Case bill by empowering Congress to veto any executive agreement within sixty days of its transmittal to Con­ gress, if a majority of both Houses votes against it.94/ Proponents state that the Ervin bill would discourage "undue secrecy" and too many "assur­ ances of support" to foreign countries.95/ Administration spokesmen op­ posed the Ervin bill on practical and constitutional grounds. On the practical side, the bill would hamper the ability of the President to resolve certain international differences by agreement, especially in situations where rapid resolution of practical problems is essential. From the constitutional point of view, it is argued, there are some agree­ ments which are solely within the President's authority to conclude and with which Congress may not constitutionally interfere.96/ The Ervin bill was not passed by Congress but the issue of congressional efforts to re­ dress the balance between the legislature and the executive remains. Whether congressional control of foreign policy should be further increased or presidential power should be significantly curtailed is not a question that can be answered easily.

-46- III. CURTAILING PRESIDENTIAL POWERS

Throughout our constitutional history, Congress and the Supreme Court have possessed means by which to check the power of the President, some of them prescribed by the Constitution, others extra-legal but nonethe­ less effective.

Although Article II, the executive article, stipulates that the execu­ tive power shall be vested in a President, the executive departments, and agencies, commissions, and boards are created by the Congress. Since 1939, Congress has recognized the President's need to reorganize the machinery of the executive branch but has required that reorganization plans be submitted to Congress for approval.

Congress retains the power to monitor the functioning of executive agen­ cies, and, in order to fulfill this responsibility, requires a large number of regular and special reports, and may require the appearance of executive officials before the appropriate committees.

The annual appropriation power of Congress provides it a potent means by which to indicate approval or disapproval of what the executive branch has done. Also, the Senate must confirm appointments to top-level posi­ tions in the executive branch.

Although the legislative role of the President is clearly very substan­ tial, Congress retains the right to dispose of that which is proposed to it. Moreover, Congress does initiate legislation, for example, the Taft­ Hartley Act of 1947, 97/ and the Smith Act of 1940, 98/ and subsequent pieces of internal security legislation.99/� Fina11;-:- Congress �-may over- ride a presidential veto.

In national defense and foreign affairs, it is Congress that provides appropriations for the support of the military and for foreign policy initiatives of the President. Congress also makes the rules "for the government and regulation of the land and naval forces."100/ Congress declares war, a power which appears to be eroded by the fact that on a number of occasions since World War II Congress and the President have agreed that a formal declaration of war would, in all likelihood, create more problems that it would solve.

Treaties, negotiated by the executive require Senate ratification by a two-thirds vote of those present. Also, appointments made by the Presi­ dent to ambassadorial or ministerial positions and to other key positions require Senate confirmation.

-47- Extra-legally, Congress, as a body, or either House, or powerful members of Congress may exert pressure upon the President to bring him to a more acceptable course of action. If a President is seriously threatened with loss of support from members of Congress for his legislative program, he must think seriously of taking steps to bring himself more into line with what Congress wishes.

As a last resort, and in the rare instances where. there may be evidence of the President's being guilty of "treason, bribery, or other high Crimes and Misdemeanors," 101/ the House may vote charges of impeachment against a President, the trial being conducted by the Senate, presided over by the Chief Justice of the United States. A two-thirds vote of Senators present is required for conviction and removal from office.

Instances in which the Supreme Court has been asked to pass upon a Presi­ dent's use of power have not been numerous. Those in which the Court has, in fact, negated a presidential interpretation of power are even rarer, and, for that, all the more dramatic. Again, in recent times, the deci­ sions of the Court in the Steel Seizure Case (1952) and in the Executive Privilege Case (1974) are notable examples of the Court's denying the validity of a presidential claim of power.102/

The President's Power as Chief Executive and Chief Administrator

Congress has on the whole accorded considerable weight to the President's own interpretation of his responsibility to see that the laws be faith­ fully executed.

In many instances, Congress has acquiesced in a presidential interpreta­ tion of legislation that, on its face, was at variance in some degree with the seemingly clear intent of the legislators. Theodore Roosevelt, in pursuit of his strong interest in conservation of natural resources, with­ drew from private entry large parcels of public lands as forest or bird preserves, or because they were potential sources of important minerals, although the legislation under which he acted specified a presidential right to withdraw only those lands in which mineral deposits had been found. Subsequently, the Supreme Court upheld this exercise of presiden­ tial power on the ground that Congress had never exercised its power to modify the legislation, and had thereby acquiesced in the President's interpretation of his power.103/ Moreover, the Court pointed out, Presi­ dents before Theodore Roosevelt had withdrawn some public lands from pri­ vate entry without any statutory basis. Thus, as E. S. Corw1n writes, "the President was recognized as being able to acquire authority from the silence of Congress as well as from its positive enactments, provided only the silences were sufficiently prolonged."104/

Since Andrew Jackson's presidency, the chief executive, through the attor­ ney general of the United States, has had the authority to determine

-48- whether prosecutions under a particular statute would be undertaken, and whether, in lower court decisions adverse to the U.S. government, appeals would be taken to the higher courts. The duty to take care that the laws be faithfully executed is, then, recognized to be a right to select broadly which laws shall be enforced with what degree of vigor. However, in the context of Watergate, it has been recommended by some that an independent Office of Special Prosecutor be set up on a regular basis, as a check upon the rectitude of the chief executive and his assistants, and, perhaps, as a spur to more vigorous enforcement of the laws. Almost any statute enacted by Congress produces a large number of execu­ tive orders, administrative rules and regulations, which though technically are merely to fill in the gaps, or put flesh upon the bones, in fact give great substance or meaning to legislation. Congress has often made quite vigorous efforts to draft legislation in precise terms; it is more often than not unsuccessful.

The Senate's Special Committee on National Emergencies and Delegated Emer­ gency Powers submitted for Senate consideration on July 11, 1974, a bill to terminate certain authorities with respect to national emergencies still in effect, and to provide for orderly implementation and termination of future emergencies.· The bill (S. 3957) passed the Senate October 7, and as this goes to press it is pending in the House.

The bill would bring to an end on the 27lst day after its enactment into law the very considerable number of emergency statutes, executive orders, and administrative regulations now in effect. Thereafter, Presidents could declare emergencies if such a declaration were essential to the pre­ servation, protection and defense of the Constitution, and to the common defense, safety, or well-being of the territory and people of the United States. On declaring war, Congress might also proclaim an emergency. A presidentially proclaimed emergency would be terminated on the 180th day after the proclamation unless Congress terminated it earlier, or extended it beyond the 180th day. Any emergency proclaimed by Congress in declaring war would be terminated on the 180th day unless the war itself had not been terminated. The President would be responsible for maintaining a file and an index thereto of all executive orders, rules and regulations, and orders issued by him pursuant to his declaration of an emergency or to any statu­ tory grant made by Congress pursuant to a presidentially declared emergency or a declaration of war. Thus, the bill would put an end to the indefinite continuation of emergencies such as those which were proclaimed by Presi­ dent or Congress during the Great Depression and World War II.

In many statutes, Congress has delegated authority to the President or to executive agencies to take certain actions whenever a set of events occurs (a contingent delegation), or to give particular meaning to a general prin­ ciple or formula stated in the legislation, as for example, to determine the meaning of "excessive profit" in administering the Renegotiation Act.

-49- As pointed out above, the delegation of authority to the President in the Antideficiency Acts of 1905 and 1906; as amended in 1950, 105/ to impound funds to effect savings and establish reserves for contingencies, so long as the impounded funds were not required to fulfill the purposes of the original appropriation, has given rise to one of the most heated recent controversies between Congress and the President over presidential inter­ pretation of power. President Nixon, invoking the Employment Act of 1946 which gives the Presi­ dent responsibility for the health of the economy, and relying also upon his power as chief executive, impounded funds to assure that inflation would be controlled, taxes kept within reasonable bounds, and ineffective government programs reduced or discontinued.

The dissatisfaction in Congress with these exercises of presidential im­ poundment mounted. As explained in Chapter II, in 1974, in its new budget reform legislation, Congress provided that the President may impound funds to defer spending unless d:isapproved by the House or Senate, but must ask Congress to rescind the appropriation if he intends not to spend it at all.106/

In the same session of Congress, Public Law 93-250 provided that persons nominated by the President to be director or deputy director of the Office of Management and Budget (OMB) would be subject to Senate confirmation. This is an assertion by Congress that, given the importance of OMB in formulating the budget, and in assisting in preparing legislation, the Senate should have the opportunity to pass upon persons appointed to the two top positions. There is no reason to believe that the Senate will be less accommodating to a President in confirming these appointees .to posi­ tions very close to the President than it has been with similar positions in the past.

Congress has retained its powers to veto reorganization proposals. Some­ times it has exercised the power to frustrate presidential wishes, as in the 1971 proposal by President Nixon to establish Departments of Human Resources, Natural Resources, Community Development, and Economic Affairs, presented to Congress by message on March 25, 1971. Congress retains the power to veto reorganization because, at least in part, reorganizations affect policies and power. Still, through 1972, Congress approved seventy­ two of the ninety-one reorganization plans offered by Presidents.

With respect to appointments and removals of executive branch employees, Congress may extend the number of offices, appointment to which requires Senate confirmation, as in the 1974 case of the director and deputy direc­ tor of OMB; it may remove offices from the presidential appointment power by placing them under the merit system, as in establishing the civil service in 1883 and extending its coverage in a number of enactments since; and it may limit the President's removal power to a requirement that specified

-50- cause be shown. At the present time, the top appointees in the indepen­ dent regulatory agencies ma y be removed by the President only for cause. In the 1935 decision in Humphrey's Executor v. U.S. and in the 1958 deci­ sion in Weiner v. U.S. the Supreme Court upheld the power of Congress thus to limit the removal power of the President when the officials concerned are exercising quasi-legislative and/or quasi-judicial powers.107/

Finally, a very recent occurrence may be noted in illustration of the "power" of Congress. Having received a written inquiry concerning his pardon of former President Richard M. Nixon from Representative William L. Hungate (D-Mo.), chairman of a subcommittee of the House Judiciary Committee, President Gerald Ford replied that the would voluntarily appear before the subcommittee to make a statement about the pardon. Representa­ tive Hungate did not suggest that he would seek to compel the President to respond to his inquiry. The President chose to respond in person. While his appearance before the subcommittee, scheduled for October 10, 1974, was postponed until the completion of selection of the Watergate cover-up trial jury, it took place on October 17.

Two of those rare instances in which the Supreme Court has overruled a presidential interpretation of the executive power have occurred in the last twenty-two years.

In the first of these, the Steel Seizure Case, the majority of the Court rejected the argument that the President has inherent power as chief execu­ tive and commander-in-chief to seize an industry threatened by a strike. The Court divided six to three; all six members of the majority wrote separate opinions. Justice Black, writing for the Court, argued that there had been no general statutory grant of authority to the President to seize, and that·, indeed, in debating the Taft-Hartley Act, Congress had rejected presidential seizure as a last step to keep plants open when labor and management had failed to agree after the Act's cooling-off period. He could find no basis in either the chief executive or commander-in-chief clause for the President's action. In Justice Robert H. Jackson's con­ curring opinion, he concluded that the logic of the argument made by the government's lawyers was "that the President having, on his own responsi­ bility, sent American troops abroad, derives from that act 'affirmative power' to seize the means of providing a supply of steel for them.... "108/ �- He continued:

...no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commit­ ment of the Nation's armed forces to some foreign venture .... The plea is for a resulting power to deal with a crisis or an emergency according to the necessities of the case, the unarticulated assumption being that necessity knows no law .... 109/

-51- Commenting on the majority opinion, E. S. Corwin called it "making bricks without straw," that is, ignoring, as though they had never existed, the very large number of instances in which Presidents in wartime emergencies have acted without specific grants of power.110/ But the late Justice Felix Frankfurter, in a separate concurring opinion, surveyed presidential seizures of property back through the Lincoln Admin'istration and found only three "isolated instances" in which Presidents claimed seizure power without congressional authorization or ratification and that the excep­ tions were not the kind of executive precedents entitled to decisive weight in a case in which executive power is at issue.

In 1974, in a unanimous decision, the Supreme Court held that "the mere generalized claim of executive privilege, as distinguished from a speci­ fic assertion of such privilege against disclosures of diplomatic or mili­ tary secrets cannot prevail over the due process demands for all the rele­ vant evidence in a criminal trial."111/ A U.S. District Court had, at the request of the Special Prosecutor, issued a third-party subpoena duces tecum, directing the President to produce at the criminal trial of the Watergate cover-up defendants tape recordings and documents relating to the President's conversations with his aides and advisers. The President moved to quash on the ground that the subpoenaed materials were within his executive privilege.

The Chief Justice refuted the claim that separation of powers precludes judicial review of a President's claim of privilege. Quoting the language of Chief Justice Marshall's opinion in Marbury v. Madison, Chief Justice Warren E. Burger asserted that it is the duty of the Court to say what the law of the Constitution is. Further, the Chief Justice argued that, although

the President's need for complete candor and objectivity from advisors calls for the great deference from the Courts,... absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality or presiden­ tial communications is significantly diminished by pro­ duction of such material for in camera inspection with all the protection that a district court will be obliged to provide.112/

Finally, the Chief Justice wrote, A President and those who assist him must be free to ex­ plore alternatives in the process of shaping policies and making decisions and to do so in a way many would be un­ willing to express except privately. There are the con­ sideration;justifying a presumptive privilege for presi­ dential communications. The privilege is fundamental to

-52- the operation of government and inextricably rooted in the separation of powers under the Constitution. But this presumptive privilege must be considered in light of our historic commitment to the rule of law. This is nowhere more profoundly manifest than in our view that "the two-fold aim of criminal justice is that guilt shall not escape nor innocence suffer."113/

Thus where in a criminal trial presidential records are subpoenaed and no specific claim is made that they are ·related to national defense or foreign policy, the President must yield them to a court in order that the ends of criminal justice be not defeated.

The President's Power as Legislator There has been no significant movement in Congress to reduce the Presi­ dent's role as legislator, except in the one area of budget-making. Act­ ing on the view that budgets determine program priorities, Congress has, in 1974, sought to extend its control over legislative programs by attempt­ ing to strengthen its own part in the budget process with the enactment of Public Law 93-344.

P.L. 93-344, debated in both houses for more than a year, undertakes to give Congress a larger part in the annual budget by:

(1) Establishing Budget Committees in each house composed of mem­ bers of the Ways and Means and Finance Committees, the Appropriations Committees, and several of the substantive standing committees, plus mem­ bers chosen by the majority and minority leaders.

(2) Providing for a staff for a Budget Office in both houses.

(3) Altering the date for beginning the fiscal year to October 1, so that there will be more time to review executive budget proposals.

(4) Establishing May 15 as the deadline for legislation which authorizes spending, this deadline to be waivable in either house by majority vote.

(5) Establishing May 15 as the deadline for action in either house on the ceilings proposed by their respective Budget Committees on revenues and appropriations, this deadline to be waivable in the Senate by majority vote. (6) Banning floor consideration of spending or revenue measures before May 15.

-53- (7) Requiring that all appropriation measures are to be cleared in both houses by mid-September, so that the two houses can undertake to reconcile appropriations with the previously determined appropriation and revenue ceilings. The houses are free to disregard the ceilings.

Even if both houses observe a high degree of self-discipline in observing the deadlines and holding to the ceilings, it seems unlikely that the importance and influence of the President's budget--based, as it is, upon information about the programs, and a more or less unified position on spending priorities--will be significantly diminished.

The President as Commander-in-Chief

In recent years, concern about the great growth of presidential power has centered very largely upon the President's use of his powers in foreign policy and national defense. Although the Constitution gives Congress the power to declare war, in the last two decades the country has been involved in military actions which have not been declared wars, but rather have been the result of presiden­ tial decisions given post hoc support by Congress. In Korea, President Truman engaged the U.S. in a police action under United Nations super­ v1s1on. Subsequently, Congress endorsed, or acquiesced in, the action by appropriating funds and renewing draft legislation. Vietnam began through a program of lending advisers to the embattled South Vietnamese. Then, in its 1964 Tonkin Gulf Resolution, Congress authorized the President to take all necessary steps to defend the interests of the United States, including the use of armed forces in Southeast Asia.114/�- In 1973, Congress passed the War Powers Act 115/ which provides:

(1) Within forty-eight hours after committing armed forces to combat abroad, the President must report to Congress in writing, explain­ ing the circumstances and scope of his actions.

(2) Any use of American forces in combat has to end in sixty days unless Congress authorizes a longer period, but the deadline could be ex­ tended for another thirty days if the President certifies that the exten­ sion is necessary for the safe withdrawal of troops.

(3) Within the sixty or ninety day period, Congress may order an immediate withdrawal of American forces by adopting a concurrent resolution, which is not subject to presidential veto.

Debate on this bill, and the alignment of voters upon it, indicated dis­ agreement as to its impact: Some thought it a significant limitation on presidential powers; some thought it, at the least, a significant warning to the President; others thought that Presidents would read it as giving

-54- them a free hand in the use of troops for sixty or ninety days; finally, a number in each house thought the bill a dangerous infringement upon the President's powers to deal with crises.116/ However it was viewed, the two-thirds vote of each house needed to override President Nixon's veto was obtained, by margins of four votes in the House (284-135) and of thirteen votes in the Senate (75-18). 117/

The President as an Organ of Foreign Policy Curtailing the Presidential Power To Conclude Executive Agreements. As previously noted, much of the controversy about executive dominance in foreign affairs has arisen from the increased use of executive agreements.

The most direct approach would be to abolish all executive agreements by constitutional amendment, but perhaps this would be impractical. The late Secretary of State John Foster Dulles in a statement before the Senate Foreign Relations Committee in 1954 indicated that some 10,000 executive agreements had been concluded pursuant to NATO alone.118/ Ap­ proval of these and thousands of others would put a workload upon Congress that it would probably not want and could not handle. Moreover, the task could tie Congress up in a great deal of trivia.

The 1972 Ervin proposal previously mentioned is a middle ground. It would give Congress power over executive agreements in that Congress could disapprove of any agreement during a sixty-day period after it had been transmitted to Congress. Asserting that executive agreements have always been intended only for minor matters, Ervin called their increasing use a signal of presidential desire to "circumvent the treaty-making pro­ visions of the Constitution" and to "usurp legislative power in both the domestic and foreign affairs arenas. "119/

In his endorsement of the Ervin bill, Arthur J. Goldberg, the former am­ bassador to the United Nations, as well as Supreme Court Justice and secre­ tary of labor, said the nation is approaching a "constitutional crisis in the relations between the executive and Congress" because of executive assertions of power to act independently which are threatening to disrupt the system of checks and balances. He said these assertions involve not only the treaty-making powers, but also the war powers.120/

While supporting the general objectives of the Ervin bill, William E. Jackson, professor of political science at Davidson College, characterized the bill as "a trap which can catch the House and the Senate." Jackson stated that if "both bodies do not act within sixty days, then the Presi­ dent can claim congressional acquiescence or authority for what he has done. 11121/

Dr. James A. Robinson, political scientist and president of MacAlester College, doubted the legislation would do what was generally intended for

-55- it: Only a real revival of congressional activism in foreign affairs would serve.122/

Executive Control over Information. The "information gap" between the executive and legislative branches is not of recent vintage. Almost two centuries ago, The Federalist Papers indicated that the Constitution " .•. does provide the office of the President the means to gather infor­ mation with an efficiency, speed, and thoroughness that Congress could not hope to match."123/ The executive advantage in gathering and digest­ ing information has accorded that branch a superior position in creating and evaluating foreign policy. As Dr. James Robinson has pointed out:

The executive's near monopoly of information gives it the advantage of being more creative and also better prepared for.•. new proposals. Creativity often flows from new combinations of old but previously unrelated facts. Thus, the executive's superior information is likely to make it more creative. And the determination of the practicability of new proposals also rests pri­ marily on factual analysis, for which the executive's superior information is again an advantage.124/

Opponents charge that executive suppression of information is carried unnecessarily far and constitutes a very serious problem. Many, however, claim that security is rarely invoked to deprive Congress of information. Burton Sapin reports: "[Even] security-classified material is provided as a matter of course to the appropriate Congressional committees and subcommittees meeting in executive session."125/

In May 1956, Senator Thomas Hennings (D-Mo.) circulated a questionnaire asking congressional committees and subcommittees to enumerate the occa­ sions in the previous two years when the executive had refused information the committee desired. Forty-two committees indicated that they had en­ countered no denials of requested information.126/

Critics could rebut the seeming purport of responses to Hennings's question­ naire by pointing out that the committees which experienced no information problems generally dealt with domestic affairs. Even there, Johns Hopkins political scientist Francis O'Rourke has concluded that " ... there is virtually no area of the administrative process that has been left untouched by the claims of secrecy in modern American governments."127/ Abuse of secrecy, if it does exist, takes several forms. The most usual is simple overclassification of material. A 1958 analysis stated that " ...we found nobody in the Department of Defense that doesn't agree that there is overclassification."128/ Furthermore, under existing law classi-

-56- fication could be extended to an even wider range of material in the files o.f the State and Defense Departments, if the executive desired to do so.129/ There are obvious instances where secrecy has been carried too far, even in defense matters. The House Committee on Government Operations dis­ covered in 1958 that the Defense Department had classified the list of bases which sold packaged liquor to members of the armed forces, as well as the design for a bow and arrow.130/ In other cases, the issue of secrecy is more arguable. For example, in 1956 the Departments of Com­ merce, Defense, and State refused to tell the Senate Committee on Govern­ ment Operations the " .•. details of east-west trade controls maintained by the United States and the nations friendly to it."131/ Though some members of Congress were angered by the refusal of information they felt they needed in order to decide trade policy, a convincing rationale for the executive's action was presented by Acting Secretary of State Herbert Hoover, Jr. He warned that the revelation of the requested information would break an American promise to our allies to keep it secret, would anger them, and might endanger the continuation of the whole program.132/ Other disclosures might endanger military personnel or the physical safety of information sources. To this list, Professor W. Philips Davison adds the possibility that ".. .premature disclosure would tend to nullify a policy .•.."133/ Some secrecy will always be necessary--sometimes for national security reasons and sometimes to avoid revealing unreliable and scurrilous statements about individuals.134/

A substantial argument can be made that Congress needs more information within limits compatible with national security. One scholar believes that lack of information has led the House and Senate to cut foreign aid across the board, since neither body knows where it is specifically weak and the executive is unwilling to tell them.135/ Information from out­ side sources, pieced together over a period of time after a decision has been taken, does not significantly enhance congressional ability to re­ strict executive policy making. An increase in nonexecutive controls on foreign policy would depend on inside information; only the executive has such information in sufficient quantities and at the right time.136/

One suggestion for improving the state of congressional information has been advanced by Senator Hubert Humphrey (D-Minn.):

The Foreign Relations Committee needs a much larger and more specialized staff, loyal to the legislative branch, and equal in competence to the best talent in the State Department. My experience with the Disarmament Subcom­ mittee convinces me that functional areas as well as geo­ graphic areas should be accorded subcommittee staff, and that all subcommittees worth creating are worth an inde­ pendent staff of experts. An adequate staff could perform

-57- many services now being performed poorly or not at all. It would have·constant access to the facts and intelli- gence available from all branches of government, from organizations where independent research is carried on and from special Senate studies. Adequate staffing will alone enable Congress to escape from uninformed acquies­ cence on the one hand and irresponsible obstruction on the other.137/

Many observers agree with Senator Humphrey that one key to the information problem is larger and better staffing, but assert that the knottier prob­ lem is assuring that the expanded staffs do indeed possess, as Humphrey suggests, access to data in the hands of the executive branch. How could Congress ensure such access? It has been suggested that congressional staff members, responsible to Congress alone, be placed in executive agencies that deal with foreign policy. These overseers would perform a function analogous to that of the General Accounting Office in the area of federal expenditures.

Even assuming that Congress could acquire whatever information it wished, there would remain some problems as to the effectiveness and wisdom with which Congress would use the information. (1) The volume of information related to foreign affairs within the executive branch is so vast that, even with expanded staff help, Con­ gress might not be able to do anything useful with the data. Correspon­ dence between the State Department and American representatives abroad averages 300,000 words a day--a rate that doubled between 1961 and 1963 and will probably continue to increase. Absent large increases in very competent staff members quite adept at sifting the wheat from the chaff, access to such material might simply bury the Congress under a mountain of information ranging from the most trivial to the most vital. Indeed much diplomatic reporting is trivial. Yet who is to decide what is use­ ful and important? If the executive does, then he retains much of his present power. One solution might be to compel the executive to turn over all vital foreign policy data and to provide for selective inspection of all other data by the Congress-.�The knowledge that Congress by random sampling might well discover a critical withheld document might deter the executive from not transmitting important information.

(2) The system might break down when the President and Congress are of the same political party. For example, Professor Francis O'Rourke has written:

... In 1961, one of the most potent institutional checks upon the growth of government secrecy was the House Sub­ committee on Government Information, headed by Representa­ tive John Moss of California. This subcommittee did not

-58- prove to be nearly so effective a force under Kennedy and Johnson as it had been under Eisenhower. The zeal of Democratic congressmen for exposing the misdeeds of executive agencies diminished by a measurable amount when the White House was controlled by a Democratic rather than a Republican president.138/

However, one has only to look at the years-long argument between President Lyndon Johnson and Democratic Senator J, William Fulbright over Vietnam to realize that party unity does not always unify.

(3) Congress might misuse the power of increased information. Congressional control of certain aspects of foreign policy in the past lends support to those who contend that Congress is inflexible and paro­ chial in making decisions in the field of foreign policy. For example, Congress enacts the laws under which import quotas for sugar are allocated among various producing nations. In 1960, President Eisenhower asked for the authority to cut off Dominican and Cuban quotas, if he thought it necessary. He was granted the authority for Cuban quotas but denied it for Dominican quotas. Later, the President again requested the authority to cut back on the Dominican quotas, since the Dominican Republic had been censured by the Organization of American States for acts of aggression against Venezuela. The request was denied. There may have been good policy reasons for acceding to the President's request in one case and denying it in the other, but these did not become apparent from the debate.

(4) A Congress invigorated by infusions of information and anxious to assume a policy-making role might be frustrated by executive use of certain retained powers. A President might use his patronage power to attempt to manipulate the legislative branch's exercise of its new-found foreign policy powers. In 1961, the Post Office Department was charged with lobbying for the foreign aid bill; President Kennedy was taking an opportunity to remind Congress how important postal appointments were to individual Senators and Representatives. Robinson describes the panoply of presidential powers that can be used to cajole Congress:

... We may recapitulate this inventory of techniques avail­ able to the President in seeking congressional support for his foreign policy. These include appeals to individual legislators on the basis of the merits of the issue or on the basis of personal friendship or party advantage. Pa­ tronage in the form of appointments or other inducements is available either for establishing general credit for unknown future needs or for immediate objectives. Publi­ city planted in local papers and provided at White House ceremonies, together with personal or small group visits with the President., or other executive tools of persuasion.... In using one device or another the President may be prompted by his White House staff or by the Department of State.139/

-59- However, these-powers are only tools of persuasion. If the revelation of information made individual congressmen feel strongly enough about an issue, they might well fight it out despite presidential use of the carrot and the stick. President Lyndon Johnson reportedly once told Senator Frank Church CD-Idaho) that the next time he wanted a dam in Idaho to ask Walter Lippmann for it; nonetheless, Church continued to oppose the administration's Vietnam policy.

Executive Control of the Intelligence Establishment. The intelligence establishment consists of many agencies in addition to the one best known to the public, the Central Intelligence Agency (CIA). Other institutions, like the Defense Intelligence Agency and the National Security Agency, play important roles in the acquisition and evaluation of intelligence data. Most of the controversy about "spy" activities has focused on the CIA. However, any proposal to control the functions of the CIA would have to include adequate checks on all federal government intelligence operations. Absent such checks the executive could simply transfer CIA functions threatened with curtailment to another intelligence agency.

As established by the National Security Act of 1947, the CIA's major responsibilities include gathering and processing intelligence informa­ tion and coordinating the intelligence activities of other federal agen­ cies. Each of these operations is important and each contributes to the national security. Obviously, the CIA is in a position to have a very substantial impact on American foreign policy. The intelligence the agency gathers is often the basis for vital decisions.140/ The CIA draws conclusions from the evidence it gathers and presents recommendations based upon those conclusions. It may also select the data the executive will examine in order to assess the validity of the CIA's conclusions.

Senate Foreign Relations Committee Chairman J. William Fulbright has ex­ pressed concern over what he calls the CIA's policy-making role. He has suggested that a special Senate committee, composed of three members of the Committee on Foreign Relations, three members of the Committee on Appropriations, and three members of the Committee on Armed Services, should be established to oversee the agency's activities. Such a team could decrease substantially the chance that CIA's conduct would lead to a major foreign policy blunder. Some critics of the agency argue that the CIA, insisting that the Soviets would not be so foolhardy as to put missiles into Cuba, ignored or misinterpreted data indicating that that was precisely what the Soviets had done.141/ If Congress had had access to the data, the argwnent runs, its significance might have been realized sooner. The complications of the CIA role in foreign countries are purportedly avoided by vesting the American ambassador with powers over the agency. The late Senator Richard Russell (D-Ga.), the CIA's most consistent sena­ torial defender, argued in May 1966: "... the ambassa:dor to each country

-60- has control over the operations of the CIA within that country, and he has a right to halt them or to direct them as he may see fit. So it is 11 sheer poppycock to say that the CIA is making its own foreign policy. _142/ Senator Stuart Symington (D-Mo.) supported Russell by referring to his investigations during 'a visit to twelve foreign countries. In each coun­ try, he claimed, the ambassadors told him that they were satisfied with the performance of the CIA and that they had had no difficulty with CIA attempts to set policy.

The Russell-Symington viewpoint does not go unchallenged. Vassar politi­ cal scientist Charles Jacob reports that, in fact, there is very little coordination by an ambassador of agencies under his direction. He main­ tains that an ambassador, the CIA, the Agency for International Develop­ ment, and the United States Information Service all pursue " ... inconsis­ tent or even contradictory courses of action .... " within a single foreign nation.143/

In any case, it may be argued that ambassadorial control can handle only a small part of the problem; that vital CIA decisions which affect Ameri­ can foreign policy may be made in Washington, thousands of miles distant from American ambassadors in foreign countries.

Under the law, the CIA is "under the direction" of the National Security Council (NSC). Senator Fulbright has argued that NSC does not in fact supervise the CIA.

It has been asserted that the CIA functions under the National Security Council and initiates no activity which has not been ordered by the NSC. This seeks to imply close, continuous supervision by an organized mechanism. In this connection, I noted with great ·in­ terest a recent report that the National Security Coun­ cil met on May 9 of this year [1966], for the first time since July 1965. Furthermore, the formal NSC machinery in ex�stence in earlier years has atrophied to the point of nonexistence.144/

From time to time other members of Congress say that they do not know much about the CIA budget or under what other budgets its expenditures are con­ cealed and that they do not know what the CIA intends to do with the money it does receive.145/ Thus is is argued that the Congress must rely for oversight upon the few members who have access to CIA officials, records, and findings.146/ On the other hand, it has been argued that additional CIA information should not be furnished congressional committees because leaks inevitably occur and such leaks may frustrate vital foreign policy negotiations and relationships. The law places the CIA "under" NSC and provides that it shall function under the Council's direction. The Council is composed of the President,

-61- the Vice President, and the Secretaries of State and Defense. Presumably these officials are kept informed of major CIA activities and the sugges­ tion that they do not confer on the CIA and neglect their supervisory functions probably cannot be documented.

In any event, would fuller disclosure of CIA information to congressional committees significantly curtail the power of the President? Can we assume that Congress would start dictating new policies to the CIA? Since the Congress can simply exercise its investigative power to a greater extent, is the present system inherently defective? Can the affirmative argue that any change which significantly curtails executive control of foreign policy meets the resolution even if it would not require institutional changes?

A Final Note. This section has attempted to raise and explore potential affirmative approaches to curtailing the power of the presidency relating to international agreements, information and intelligence. This may be a particularly difficult area for the affirmative to work in for three reasons. First, Congress could do more within the existing framework to curtail the executive in almost any are� the affirmative would dicuss. Does this mean that the negative could argue such action as "minor repairs"? The affirmative may wish to avoid the issue by staying out of the areas outlined in this section. Second, Congress at present shows only a minimal desire for greater power over diplomacy, information, and foreign trade. Would it effectively use any new powers the affirmative plan gave to it? Finally, the affirmative may encounter problems in dealing with specific advantages. What concrete good would come from having Congress play a larger role in negotiating international agreements? Would the Senate and the House be able to use increased information to effect changes in foreign policy? Would congressional supervision eliminate any harmful aspects of CIA activities? To answer these questions, the affirmative must take and support predictions which may seem tenuous. Hard work, how­ ever, may make these areas profitable for affirmative cases.

-62- NOTES TO TEXT

Notes to Introduction lf Edward S. Corwin, The President: Office and Powers, 4th ed. (New York:, New York University Press, 1957), pp. 3-5.

'l:) John Locke, The Second Treatise of Government, 1690, Library of Liberal Arts edition (New York: Bobbs-Merrill Co., 1952), Chapter XIV.

lf Edward S. Corwin, "The Progress of Constitutional Theory between the Declaration of Independence and the Meeting of the Philadelphia Con­ vention," in American Constitutional History, Essays, ed. Edward S. Corwin, Alpheus T. Mason and Gerald Garvey, Harper Torchbook edition (New York: Harper and Row, 1964).

j} Ibid., p. 8. !!_/ Ibid. §_/ Baron de la Brede et Montesquieu, The Spirit of the Laws, 1748 (London: Nugent-Prichard, 1905), Book XI, Chapter 3.

Jj Blackstone's Commentaries I, Introduction, pp. 49-51; Chapter 1, p. 154.

§} Martin v. Mott, 12 Wheat. 19, 1827.

2./ An excellent treatment of the use of executive power by President Lincoln is to be found in J. G. Randall, Constitutional Problems under Lincoln, rev. ed. (Urbana: University of Illinois Press, 1951). lQ/ In re Neagle (Cunningham v. Neagle), 135 U.S. 1, 1890; in re Debs, 158 U.S. 564, 1895. ..!.lf Corwin, The President, p. 150. l2/ Ibid., p. 237.

13/ Ibid.

14/ The first of the still-existing statutes declaring the United States to be in a state of national emergency was enacted by Congress on March 9, 1933. 48 Stat. at L. 1. See also U.S. Congress, Senate,

-63- 14/ (continued) Special Committee on the Termination of the Emergency, Summary of Emergency Power Statutes, 93rd Congress, 1st session (1973).

15/ U.S. Code (1940), Supp. IV, Title 22, secs. 411-413.

16/ Corwin, The President, p. 239. 17/ U.S. Code, Title so, secs. 80, 82. 18/ U.S. Code, Title so, War Appendix-sec. 309 (Supp. IV to 1940 ed.). 19/ U.S. Code, Title SO, sec. 633. 20/ U.S. Code, Title so, secs. 633, 1152. 21/ U.S. Code, Title SO, secs. 901-946.

22/ 321 U.S., 414, 1944.

23/ Ibid., p. 460.

24/ Labor Relations Reporter, August 21, 1944.

25/ 322 U.S. 598, 1944.

26/ Ibid.

27/ The New York Times, September 8, 1942.

28/ Arthur M. Schlesinger, Jr., The Imperial Presidency (Boston: Houghton Mifflin Co., 1973), p. viii.

29/ Special Committee on the Termination of the Emergency, Emergency Power Statutes, p. 6.

Notes to Chapter I 30/ Samuel P. Huntington, "Congressional Responses to the Twentieth Century," in The Congress and America's Future, ed. David B. Truman (Englewood Cliffs, New Jersey: Prentice-Hall, Inc., 1965), p. 19. � Henry C. Black, Black's Law Dictionary (St. Paul, Minnesota: West Publishing Co., 1933), p. 1332.

32/ Farmer's Reservoir and Irrigation Ca v. McComb, 93 L Ed 1672, 1681.

33/ Edward S. Corwin, The President, pp. 4-5.

-64- Jack C. Planto and Milton Greenberg, The American Political Dictionary (New York: Holt, Rinehart, and Winston, 1967), p. 169.

343 U.S. 579 (1952).

See Helen B. Shaffer, "Presidential Accountability," Editorial Research Reports, vol. I, no. 9 (March 7, 1973), pp. 172-173. John F. Kennedy, Public Papers of the Presidents of the United States, January 1 to December 31, 1962 (Washington: U.S. Government Printing Office, 1963), p. 492.

Notes to Chapter II The President is not in fact elected on a "nationwide" basis, since he is chosen by vote of the electoral college, the members of which are chosen within each state by laws established by the states. The elec­ toral college structures the vote cast for the President; for some time this structuring has favored the metropolitan areas of the more popu­ lous states. For1 a discussion of the impact of the electoral college on the nomination and election of a President, see Wallace S. Sayre and Judith H. Parres, Voting for President (Washington, D.C.: The Brookings Institution, 1970).

Corwin, The President, p. 263.

Ibid., p. 264.

Constitution of the United States, Art. II, sec. 3.

42/ Theodore Roosevelt, Autobiography (New York: Scribner, 1958), p. 282.

43/ Public Papers of Woodrow Wilson (New York: Kraus Reprint Co., 1925), vol. I.

44/ Congressional Record, April 5 and June 19, 1906, remarks of Senator Dolliver, Senator Isedor Rayner. See also, remarks of Senator Benjamen Tillman, Congressional Record, March 16, 1908.

45/ 42 Stat. at L. 20.

46/ Commission on Economy and Efficiency in Government, in Catalogue of the Public Documents of the 62nd Congress and of all Departments of the Government of the U.S., July 1, 1911-June 30, 1913. See, espe­ cially, Message of the President of the U.S. on Need for National Budget, H. Doc. 854, 62nd Congress, 2nd session.

-65- Richard Neustadt, "Presidency and Legislation: The Growth of Central Clearance," American Political Science Review, vol. 48, p. 641, and "Presidency and Legislation: Planning the President's Program," American Political Science Review, vol. 49, p. 980.

48/ Neustadt, "Presidency and Legislation," p. 644. 49/ Ibid., p. 650.

50/ Ibid., p. 658. g! Constitution of the United States, Art. 1, sec. 7, pars. 2 and 3. 52/ Herman Finer, The Theory and Practice of Modern Government (New York: Dial Press, 1932), p. 1033.

The Antideficiency Acts of 1905 and 1906 as amended in 1950.

J. D. Richardson, ed., Messages and Papers of the Presidents, 1896- 1899 (Washington, D.C.: Government Printing Office), pp. 348, 360.

Ibid., p. 4331.

U.S. Congress, Senate, Appropriations Committee, First·Supplemental National Defense Appropriation Hearings, 78th Congress, 1st session, 1944, p. 739.

See the statement of Deputy Attorney General Joseph T. Sneed on "Presidential Authority to Impound Appropriated Funds," before the Subcommittee on Separation of Powers, February 6, 1973.

House Report on the Budget and Impoundment Control Act of 1974 (No. 93-658), p. 4. See Impoundment Control Act of 1974 (Title X of Public Law 93-344).

A bill requiring that all international agreements other than treaties be transmitted to Congress within sixty days of their negotiation be­ came law in August 1972 (Public Law 92-403). See U.S. Congress, Senate, Committee on the Judiciary, Hearings Before the Subcommittee on Separ­ ation of Powers, Congressional Oversight of Executive Agreements, 92nd Congress, .2nd session, April and May 1972, pp. 347-48. U.S. Congress, Senate, Committee on Foreign Relations, Hearings, U.S. Commitments to Foreign Powers, 90th Congress, 1st session, August and September 1967, p. 243. For instance, in 1930 the United States made twenty-five treaties and only nine executive agreements; in 1971, 241 executive agreements and only seventeen treaties. Schlesinger, The Imperial Presidency, p. 313.

-66- Robert S. Dahl, Congress and Foreign Policy (New York: Harcourt, Brace, and Company, 1950), p. 291.

Schlesinger, The Imperial Presidency, pp. 105-107.

See especially,"Destroyers for Bases: Did Roosevelt Have the Authority?" Armin Rappaport, ed., Issues in American Diplomacy (New York: The Mac­ millan Company, 1965), vol. II, pp._ 278-295. Thomas A. Bailey, A Diplomatic History of the American People (New York: Appleton-Century-Crofts, 1964), p. 719.

Congressional Record (daily ed.), July 31, 1967, p. S 10488.

Testimony of Professor Ruhl J. Bartlett, in Committee on Foreign Relations, U.S. Commitments to Foreign Powers, p. 15. While the destroyer-base deal was, according to the Attorney General's opinion, theoretically executed under existing domestic law, the decision taken later to land American troops in Iceland and Greenland was justified on a different basis. The President argued that this policy was a measure necessary for hemispheric defense. But Admiral Harold R. Stark, Chief of Naval Operations at the time, believed that the mea­ sures taken in Iceland were practically an act of war, and the late Senator Robert Taft (R-Ohio) argued that the sending of troops to Iceland might easily lead to war and it should not have been done without congressional approval. 68/ Ibid., p. 243.

69/ Bailey, A Diplomatic History, pp. 722-723.

70/ Congressional Record (daily ed.), July 31, 1967, p. S 10487.

J.Jj American scholarship on the origins of the cold war has been dominated since the mid-1960s by the "revisionists"--those who insist that American policy during and after World War II was largely, though not exclusively, responsible for the deep freeze which followed. This analysis, however, follows the premise which in any case motivated the U.S. cold war policy-­ Soviet hostility toward the non-Communist world.

7Jj See especially John R. Deane, The Strange Alliance (New York: Viking Press, 1947).

73/ James A. Robinson, Congress and Foreign P olicymaking (Homewood: Illinois: Dorsey Press, 1962), p. 40.

74/ James MacGregor Burns, Presidential Government (Boston: Houghton Mifflin Company, 1966), p. 214.

-67- They were Austria, Belgium, Denmark, France, Great Britain, Greece, Iceland, Ireland, Italy, Luxembourg, the Netherlands, Norway, Portugal, Sweden, Switzerland, Turkey, and West Germany.

Bailey, A Diplomatic History, p. 808.

Robinson, Congress a�d Foreign Policymaking, p. 46. The twelve original members were Belgium, Canada, Denmark, France, Great Britain, Iceland, Italy, Luxembourg, the Netherlands, Norway, Portugal, and the United States.

Bailey, A Diplomatic History, p. 808.

John M. Berry, "Foreign Policy Making and Congress," Editorial Research Reports, vol. I (1967), p. 290. Committee on Foreign Relations, U.S. Commitments to Foreign Powers, p. 17. Congressional Record, February 23, 1954, p. 2132.

See the remarks of William Jenner (R-Ind.), Congressional Record, February 23, 1954, p. 2121.

See the remarks of Senator John W. Bricker, Congressional Record, February 23, 1954; Senator Bricker argued that Articles 54 and SS of the United Nations Charter made this possible.

Congressional Record, February 23, 1954, p. 2121.

Congressional Record, February 26, 1954, p. 2374. Among those who voted for the measure was the then Senate Minority Leader Lyndon B. Johnson. Opposing the measure were Senators J. William Fulbright, Wayne Morse, and John F. Kennedy.

John C. Campbell, Defense of the Middle East: Problems of American Policy (New York: Praeger Paperbacks, 1960), p. 49.

Bailey, A Diplomatic History, p. 844.

Committee on Foreign Relations, U.S. Commitments to Foreign Powers, p. 18.

Ibid., p. 25. Congressional Record (daily ed.), July 31, 1967, p. S 10491.

-68- 92/ Legislative Analysis, The War Powers Bill (Washington, D.C.: American Enterprise Institute, 1972), p. 11.

93/ U.S. Congress, Senate, Committee on the Judiciary, Hearings Before the Subcommittee on Separation of Powers, Congressional Oversight of Execu­ tive Agreements, 92nd Congress, 2nd session, April and May 1972, pp. 347-348. However, the bill provided that "any such agreement the immediate disclosure of which would, in the opinion of the President, be prejudicial to the national security of the United States shall not be transmitted to the Congress but shall be transmitted to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives under an appropriate injunction of secrecy to be removed only upon due notice from the President."

94/ Ibid., pp. 6-7.

95/ Testimony of Clark M. Clifford, in ibid., pp. 25-26.

96/ Testimony of John R. Stevenson, in ibid., pp. 259-260.

Notes to Chapter III

97/ The Labor Management Relations Act, 1947, 61 U.S. Stat. at L. 136.

98/ 54 Stat. at L. 671.

99/ The Internal Security Act of 1950, 64 Stat. at L. 987; The Communist Control Act of 1954, 68 Stat. at L. 775.

100/ Constitution of the United States, Art. I, sec. 8.

101/ Constitution of the United States, Art. II, sec. 4.

102/ Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579; U.S. v. Richard M. Nixon, President of the U.S., and Richard M. Nixon, President of the United States, v. U.S., decided July 24, 1974, vol. 41, L Ed 2nd, decided July 24, 1974, pp. 1039, 1064. 103/ U.S. v. Midwest Oil Co., 236 U.S. 459.

104/ Corwin, The President, p. 121.

105/ 31 U.S. Code 665, 1970 ed. 106/ Public Law 93-344.

-69- 107/ Humphrey's Executor v. U.S., 295 U.S. 602; Wiener v. U.S., 357 U.S. 349, 1957. 108/ 343 U.S. 642.

109/ Ibid. llO/ Edward S. Corwin, "The Steel Seizure Case: A Judicial Brick without Straw," in Essays in Constitutional Law, ed. Robert G. McCloskey (New York: Random House, 1957).

111/ U.S. v. Nixon, vol. 41, L Ed 2nd, decided July 24, 1974, p. 1039. ll2/ Ibid., p. 1063. ll3/ Ibid., p. 1064.

114/ Public Law 88-408; 78 Stat. L. 384.

115/ Public Law 93-148.

116/ For a brief report on proponents and opponents of the War Powers bill, see Congressional Quarterly, November 10, 1973, pp. 2943-2944, pp. 2985-2986.

117/ House votes on the veto divided as follows: To sustain--Democrats 32, Republicans 103; To override--Democrats 198, Republicans 86. Senate votes on the veto divided: To sustain--Democrats 3, Republicans 15; To override--Democrats 50, Republicans 25.

118/ Elbert M. Byrd, Treaties and Executive Agreements of the United States-­ Their Separate Roles and Limitations (The Hague, Netherlands: Martinus Najhoff, 1960), p. 132.

119/ Congressional Oversight of Executive Agreements, pp. 1-5.

120/ Testimony of Arthur J. Goldberg, Congressional Oversight of Executive Agreements, pp. 10-14.

121/ Statement of William E. Jackson, Congressional Oversight of Executive Agreements, p. 226. Testimony of James A. Robinson, Congressional Oversight of Executive Agreements, p. 44.

Maurice Walters, "Special Diplomatic Agents of the President," The Annals of the American Academy of Political Science, September 1956, p. 124.

-70- Robinson, Congress and Foreign Policymaking, p. 193.

Burton Sapin, The Making of United States Foreign Policy (New York: Frederick A. Praeger, 1967), p. 59.

Robert Kramer and Herman Marcuse, "Executive Privilege--A Study of the Period 1953-60," Part I, George Washington Law Review, April 1961, pp. 627-629.

127/ Francis E. O'Rourke, Secrecy and Publicity (Baltimore: The Johns Hopkins University Press, 1966), p. 11.

128/ J. K. Wiggins, "Government Operations and the Public Right to Know,'' Federal Bar Journal, 1959, p. 67.

129/ Joseph W. Bishop, Jr., "The Executive's Right of Privacy," Yale Law Journal, February 1967, p. 487.

130/ Wiggins, "Government Operations and the Public Right to Know," p. 66.

131/ Kramer and Marcuse, "Executive Privilege," Part I, p. 636.

132/ Kramer and Marcuse, "Executive Privilege," Part II, p. 842.

133/ Statement of W. Philips Davison in Subcommittee on International Organizations and Movements of the Committee on Foreign Affairs of the House of Representatives, Modern Communications and Foreign Policy, 90th Congress, 1st session (1967), p. 17. 134/ O'Rourke, Secrecy and Publicity, p. 46.

135/ Sapin, The Making of United States Foreign Policy, p. SS.

136/ H. Bradford Westerfield, "Congress and Closed Politics in National Security Affairs," Orbis, Fall 1966, pp. 742-743.

137/ Hubert H. Humphrey, "The Senate in Foreign Policy," Foreign Affairs, July 1959, pp. 534-535.

138/ O'Rourke, Secrecy and Publicity, pp. xii-xiii.

139/ Robinson, Congress and Foreign Policymaking, pp. 130-131.

140/ Sapin, The Making of United States Foreign Policy, p. 289.

141/ Hansen Baldwin, "The Growing Risks of Bureaucratic Intelligence," The Reporter, August 15, 1963, pp. 48-52.

-71- 142/ Congressional Record (daily ed.), May 16, 1966, p. 10124.

143/ Charles E. Jacob, Policy and Bureaucracy (Princeton, New Jersey: 0. Van Nostrand Co., Inc., 1966), pp. 175-176.

Congressional Record (daily ed.), July 14, 1966, p. 14931.

Holbert N. Carroll, "Congress and the National Security Policy," The Congress and America's Future, ed. David B. Truman (Englewood Cliffs, New Jersey: Prentice-Hall, Inc., 1965), p. 159.

Congressional Record (daily ed.), May 16, 1966, p. 10126.

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"Abolition of Federal Offices as an Infringement on the President's Power to Remove Federal Executive Officers: A Reassessment of Constitu­ tional Doctrines." Fordham Law Review, vol. 42 (March 1974), pp. 562-610.

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Requiring Confirmation of Future Appointments of Director and Deputy Director of Office of Management and Budget. H. Rep. 697 to accompany H.R. 11137, December 5, 1973.

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Budget Control Act of 1973: Hearings. On H.R. 7130, July 19-September 20, 1973. 93rd Congress, 1st session (1973).

Budget and Impoundment Control Act of 1973: Report with Minority, Separate, and Additional Views. H. Rep. 658 to accompany H.R. 7130. 93rd Congress, 1st session (November 20, 1973).

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Improving Congressional Budget Control: Hearings. 93rd Congress, 1st session (January 18-March 15, 1973) (Document 27092).

U.S. Congress, Senate. Office of Management and Budget, Veto Message, Message from President of the U.S. Returning without Approval, Bill S. 518. Senate Document 16. 93rd Congress, 1st session (May 21, 1973).

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Transmittal of Executive Agreements to Congress: Hearings. 92nd Congress, 1st session (October 20-21, 1971) (Document 1571).

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War Powers. Report together with additional views of Senator Fulbright and individual views of Senator John Sherman Cooper to accompany S. 2956, February 9, 1972. (Document 606.)

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Planning, Progranuning, Budgeting: Uses and Abuses of Analysis. Memorandum prepared at request of Subconunittee on National Security and International Operations, pursuant to S. Res. 212 (by James R. Schlesinger). 90th Congress, 2nd session (1968).

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