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Mr. REHNQUIST. But you are saying that the authority to take care that the laws be faithfully, or his direction to take care that the laws be faithfully, executed is by itself some sort of direction to him to simply carry out the will of Congress without regard to
Professor BICKEL. Certainly; it is the only foundation upon which one can argue that when Congress passes a statute establishing Social Security Administration and medicare or something, and says, this is the policy and this is how we want people taken care of—the only foundation for saying that the President, after having vetoed the law—well, take a specific example. Congress passes the Internal Security Act of 1952, or the Taft-Hartley Act, and the President vetoes it and Congress overrides his veto. The only foundation for saying that the President can't impound that policy is that the Constitution says he is charged with taking care that the law is executed. Now, that does not mean he does not have any discretion, he does have an Executive function, nor does it mean that Congress can override the Executive function. They cannot come in and tell him how to execute it or monitor his directives to his subordinates. As you say in one opinion, Congress can't come in between the President and the Commissioner of Education. It can't speak to the Commissioner of Education over the President's head. It can't, in other words, shortcut the Executive function. But it sets the policy. That is what is meant by law and the position is that the President has to carry it out or Executive discretion reaches farther than I am sure you would argue that it ought to reach.
So my problem is that I have difficulty seeing where the power of the Commander in Chief or the power of foreign relations as such cuts into this general scheme and allows for the argument that whereas a mandatory appropriation in the domestic field would have to be obeyed, a mandatory appropriation to buy tanks or to hand over $50 million to Israel or Saudi Arabia does not have to be obeyed.
Mr. REHNQUIST. Well, I think it gets difficult to probably make an impression on one or the other in the abstract. I do think it is clear beyond dispute that, for instance, a number of Senators during the 1963 debate made a point that the power of Congress to compel spending in the national defense area, where you are talking about whether you going to have additional planes or not, is not the same as its authority in the domestic field. And I suspect that I could cite examples from either the foreign affairs field or from the defense field where Congress can't compel the President to act, whether it be spending money or otherwise, to the same extent it can in the domestic field. Now, given that difference
Professor BICKEL. If I may interrupt, Mr. Rehnquist, I would dispute that except as you come to very specific functions that can be defined as those of the Commander in Chief, just as very specific functions can be defined as those of an Executive which the separation of powers prevents Congress from taking over. Congress can't tell you who should command a regiment, who should command a division. It can't tell you how to command those troops tactically or. if you will, strategically. But I do not follow that this has a sort of vague, continually outgoing reach. It has been the fashion since World War II, I think, to regard the foreign affairs and war power
in termsent was getting can well imag
as sort of interminable vistas that reach out into an undefinable future and I think one of the salutary things about the day we are living in now is that people are reexamining that and reexamining the rather vague, general, and indiscriminate statements of the past that of course, the Commander in Chief, or of course, the President is in charge of foreign relations, and he can do virtually anything. Mr. REHNQUIST. I fully agree with you. Professor BICKEL. Maybe we had better stop right there. Mr. REHNQUIST. Maybe we had.
Professor WINTER. I must say, I tend to disagree with my colleague Bickel that it is a very narrow range of things. It seems to me that in terms of separation of powers, Congress in the Cooper-Church amendment was getting very, very close to making tactical decisions for the President and I can well imagine a number of appropriations in the field of military policy that might seem to me to infringe on the presidential power of the Commander in Chief; policy directions which, if they were made without appropriations, the President ought to ignore the fact that they are connected with an appropriation seems to me not to make any difference whatsoever.
Professor BICKEL. I entirely agree. It makes no difference if they are connected with appropriations. The Constitution does not state an appropriation power. This is one of Mr. Weinberger's troubles yesterday. He tended to derive the President's power from the constitutional negative provisions, that you cannot spend money without an appropriation. It says appropriated by law. The Constitution provides for Congress to pass laws, not to make appropriations. And approriations are one form of law that Congress can pass. If Congress has any power, it has the power to pass a law and it can attach an appropriation to a law or not attach an appropriation to a law, whichever it chooses to do. But the basic power is the power of section 8, article 1. And the appropriation does not much add to it.
Senator ERVIN. I would like to state that I agree with Professor Bickel and Professor Miller. I opposed the Cooper-Church amendment on the ground that I think after the Congress gives the President the power, as it did in the Tonkin Gulf resolution, to put the forces of the United States into combat, the power to direct the tactical operation of those troops belongs to the President. And Congress, I said, was attempting to usurp and exercise some of the functions mandated to the Commander in Chief. That is one of the manifestly wise provisions of the Constitution, because if it had the Commander in Chief in the possession of the power along with 100 senators and 435 congressmen sharing that power, we would have a situation where one of them would command the army to advance and another would command the army to retreat and the third would command it to stand still.
But I can't agree that there is any difference between this question in the domestic field and the fact that the President is Commander in Chief. Section 7 of article 1 says among other things, that the powers of Congress are to raise and support armies, to provide and maintain a navy, to make rules for the Government and regulation of the land and naval forces.
The only power that the President has as Commander in Chief is to direct the operation of the Armed Forces, not the appropriations that are made for the maintenance of the Armed Forces. And also, I think that the necessary and proper clause deals with this problem. It says Congress shall have the power to make all laws which are necessary and proper for carrying into operation the foregoing powers and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof. In other words, I think Congress can pass laws for the purpose of carrying into effect the powers vested by the Constitution in the President.
Mr. REHNQUIST. No question. For example, the establishment of cabinet departments has always come by legislation.
Senator ERVIN. Many people take the position that the President has almost supreme authority in the field of foreign relations, but I think the Constitution gives him the power, expressly to receive and appoint ambassadors, to nominate ambassadors and to receive foreign ambassadors, foreign ministers, and so forth, and impliedly gives him the power to be the mouthpiece of the United States in dealing with foreign countries. I think Congress' power of the purse applies to foreign affairs just as much as it does to domestic affairs.
Mr. REHNQUIST. Senator, certainly so far as the power of the purse being the power to insist that money be appropriated before it is spent, I do not have the slightest doubt and I take it that no one who has studied the matter would. I think it is a more difficult question when you start talking about the power to compel money to be spent.
Let me, if I might, pose an example that would certainly trouble me and I would hope it would trouble those who are partisans of the other view. Supposing Congress appropriates a million dollars and says it has to be spent to equip all the people in regiment "A" with blue uniforms and the President decides he does not want blue uniforms on regiment “A.” Now, I think, clearly within his power as Commander in Chief, he has a right to prescribe the mode of dress of that regiment. Can he be compelled to spend that money even though he is perfectly free under the Constitution to refuse to use the proceeds of it?
Senator ERVIN. I respectfully disagree with you, because I think the power to make rules for the Government and regulation of the land and navy forces includes the power to say what kind of uniforms they should wear if Congress should so specify. I think the President is authorized to direct their fighting and authorized to direct them when they are called out to suppress insurrections. I think that is the power of the Commander in Chief, but not to determine whether their uniform shall be blue or some other color.
Professor BICKEL. It seems to be something going more to the heart of the function of the commander is discipline, is it not! Yet the Constitution happens to provide on that subject. It is Congress which decides that a breach of discipline gets tried by a jury of a man's peers or gets tried by six majors and one colonel or what the penalty for it is or whatever. Because Congress is given that power specifically by the Constitution. I think all that is reserved is what you can define as the power to command and what is left of the power of command after you carve out the things that belong to Congress.
Mr. REHNQUIST. I do not agree with the view that power to make
regulations governing land and naval forces would go as far as you suggest.
Professor BICKEL. You do not agree?
Professor BICKEL. If it is enacted by Congress, the President could not decide not to enforce it.
Mr. REHNQUIST. I would suggest as far as the Congress suggested it, it would go.
Professor BICKEL. If you are living under a constitution where Congress can say what the means are for enforcing discipline on your troops, you have swallowed the camel. That certainly should enable you to swallow the gnat of Congress also saying what kind of uniforms they ought to wear.
Mr. REHNQUIST. No, I do not think that follows. I think it is two different kinds of things.
Professor BICKEL. A camel and a gnat.
Senator GURNEY. Let me ask this question of Professor Bickel. This portion of the Constitution, section 3 of article 2, that says the President shall take care that the laws be faithfully executed.
Professor BICKEL. Yes, sir
Senator GURNEY. Was there anything in the Constitutional Convention, remarks or debates, which indicated what “faithfully” meant or "faithfully executed” meant ?
Professor BICKEL. I do not recall, Senator Gurney, that there was. I think the discussions that at least one recalls offhand were all in terms of the executive power, which was, surely, quite broadly conceived and people were working against the background of an executive power in England, which was quite a prerogative, which was, in fact, the word that tended to be used. It was a very substantial power. They did not think of the President as a ministerial subordi. nate officer by any means. But I do not recall any specific discussion. Because I think the scheme was that he had sort of what was left and the reliance was on the statement, on negative statements about him and on the statement of a very powerful legislative reservoir of power, including the necessary and proper clause. And it is a reliance that I think one can say has historically proved justified.
Senator ERVIN. If I may comment also, I think that is pretty well put in the first words of article II dealing with the powers of the President. It says in section 1, “The executive power shall be vested in the President of the United States of America.” As I understand, executive power is the power to execute the laws that somebody else makes.
Professor MILLER. I would also say this, Senator Gurney, that the words were written in the background of a time when there was a fear of Executive power, of the King of England and so on. The idea was to limit Executive power rather than to expand it. I do not think you can find anything in the debates or the history, I do not think you can go back and find anything definitive. I certainly think this is as important as what Mr. Bickel says.
Professor BICKEL. You may recall in the 1780 Parliament, shortly before our Constitution was written, the famous phrase, “the power
of the Crown has increased, is increasing, and ought to be diminished." I think the framers of the Constitution had that in mind and they thought they were doing it.
Senator GURNEY. I would gather that certainly if the law is clear that Congress intends something to be done, that the words “faithfully executed” would indicate that the President ought to carry them out.
Would you not say that is a fair observation ?
Senator ERVIN. I do not think that his duty ceases or is limited by the fact that it is not a very appropriate act for the Congress to go into courts and sue the President, because I think his duty to faithfully execute the laws follows from the oath of office of the President to support the Constitution.
I was very much intrigued by Mr. Weinberger's statement, because he took the position that it is the duty of the President to enforce all laws, see that all laws are faithfully carried out some way or other. He says that gives the President the inherent power not to carry out an Appropriation Act. His logic seemed rather illogical to me.
Senator GURNEY. I must say I tend to agree with you, too, Mr. Chairman, about this business of the powers of Commander in Chief. Some people seem to indicate that the Commander in Chief can do anything. I certainly do not agree with that at all. I think if Congress decides to make a statement on the subject, it has all the full force and effect of law. And I think we recognize that I would say the President and the executive branch also recognize that in the very historic debates we had last year on the Church-Cooper amendment, because we were careful, in the final analysis, when we phrased that amendment and passed it, that we did not tie his hands or pin him down completely so that he did not have some freedom of action. I think we were both recognizing the fact that, yes, he is the Commander in Chief and certainly entitled to run the war tactically, as you put it. That is why I do not think we messed around and tried to make some tactical decisions ourselves.
Senator Ervin. Yes. Also, I think it is very important that the only time the word "all" is in the Constitution is in article 1, section 1, "All legislative power herein granted shall be vested in the Congress.” That is the only way of getting laws made in this country.
Professor MILLER. I ask Mr. Rehnquist what he sees in the inherent Executive power of the Commander in Chief and foreign affairs? Do you find any limits at all that you can perceive, Mr. Rehnquist?
Mr. REHNQUIST. I would not speak of it as inherent Executive power.
Professor MILLER. Excuse me. Then where does it come from? Mr. REHNQUIST. The power of the Commander in Chief and the foreign affairs power that is impliedly conferred by the Constitution, is certainly recognized in the Curtiss-Wright case.
Professor MILLER. As a matter of technical law, Mr. Rehnquist, what Mr. Justice Sutherland said in that case was dicta, was it not, not necessary to the case itself? You are relying on a pretty flimsy