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regulations governing land and naval forces would go as far as you suggest.

Professor BICKEL. You do not agree?

Mr. REHNQUIST. No.

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.

Mr. REHNQUIST. I do not agree that they are so different in size.

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 subordinate 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

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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?

Professor BICKEL. Yes, sir.

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

straw when you rely on Curtiss-Wright. I know it is about all you have.

Mr. REHNQUIST. Well, we have a nearly unanimous opinion written by Southerland, and concurred in by Brandeis and Cardozo. I would not regard that as flimsy.

Professor MILLER. I mean the language about the delegation of the power to the Executive. What the Curtiss-Wright case, in effect says, is that the National Government has all the powers of any sovereign, despite the Constitution's basic theory that the National Government is one of limited delegated power. That is the import, it seems to me, of the Curtiss-Wright case. It does not really go to the question of the division of powers between the President and Congress and to rely on it for presidential power seems to me is going far beyond what the court said.

Mr. REHNQUIST. It may be carrying it beyond what was necessary for the holding of the case, but the Court speaks in terms of the President, not of the National Government when it is talking about the foreign affairs power.

Professor MILLER. But the facts of the case dealt with the delegation of power from the Congress.

Professor WINTER. Are you denying, Mr. Miller, that the President has tactical power as Commander in Chief

Professor BICKEL. The Curtiss-Wright case did not deal with tactical power. Kent v. Dulles is a foreign affairs case. If you read Curtiss-Wright to its full extent as establishing a-if you read its dicta to say that here is a power of the President to act on his own. Still the only thing it holds is that Congress needn't have delegated with the kind of standards we would expect in the domestic field. Then you have to read Kent v. Dulles in its relation to the foreign relations power, and it says you have to have a delegation.

Mr. REHNQUIST. The question is also different in Kent v. Dulles because you are also getting close to a Bill of Rights type of question, which you do not have in Curtiss-Wright.

Professor BICKEL. Some of us think the amendments do not range in any particular order of importance.

Mr. REHNQUIST. You are of the old school.

Senator ERVIN. I always thought that expression of Justice Sutherland just proved that judges are like Senators; sometimes they talk too much.

Mr. REHNQUIST. He was both a Senator and a judge.

Professor MILLER. I come back to the first question, Mr. Rehnquist. I would be interested in the limit that you see there, because I am particularly interested not only in the context of what this subcommittee is doing, but as I understand from the papers, from testimony you gave in the past 2 weeks before another committee with regard to the powers of the Executive. I would like to know how you limit the powers of the Executive. Do you see any limits to the power of the Executive in certain areas? What criteria do you employ? Is it just a wide open thing?

Mr. REHNQUIST. No, I would not regard it as a wide open thing at all. It is a difficult question, Professor Miller, as you doubtless know, to respond to generally. You know, the President obviously

does not have legislative powers. As the chairman has pointed out, that is very specifically vested in the Congress.

The Executive has no right to spend money in the absence of an appropriation. You have negative limits on the Executive that are either implied or expressed in the Constitution which obviously cut out those parts of what power he might claim. There are limits of the power as Commander in Chief. Certainly the Youngstown case is one example, where it was held, as we all know, that the President's power as Commander in Chief does not extend to seizing steel mills. as it was raised in that particular case.

Professor BICKEL. A first amendment matter clearly.

Professor MILLER. I am still uncertain about how you chop it off, though, insofar as his Commander in Chief powers or his foreign affairs powers. Just where do you decide he can go this far and no farther?

Mr. REHNQUIST. If you could give me some sort of example, I could respond more readily, or if I went back and spent 48 hours trying to formulate a definition, I might come back and tell you.

Professor MILLER. Just let's take the Cooper-Church amendment or the resolution. Let's take that as an issue. Would the President, in your theory of his office, be free to ignore that if he thought it necessary and desirable?

Professor WINTER. Might I inquire what form of Cooper-Church? As I remember, as finally passed, it was thought by some people to be considerably different than initially offered? Do you mean the initial one?

Professor MILLER. Let's just stay with the expression of the Senate. at least, that there should be no ground troops in Cambodia or Laos. Professor WINTER. For any purpose?

Professor MILLER. All right. I am just asking whether or not the Commander in Chief power would go as far as thought desirable?

You are putting forth the theory of Executive power which has a good deal of political theory behind it, of course. The English term for it is "reason of state." There are certain areas where the President does have a sort of inherent power where he can act, without regard to law or without regard to anything else. I am asking whether you think in that context, whether you believe, could the President flout or ignore what Congress wants and quietly say, "I am going to send troops in anyway?"

Mr. REHNQUIST. Giving the widest latitude to the discussion format that the chairman has set up, which I appreciate and think is very valuable, I nonetheless think that as an officer of the administration. it would be inappropriate for me to express a view on something that particular and specific in a format like this. Let me try in another way to answer the question.

Supposing instead of the Cooper-Church amendment, the Congress had passed a law or a resolution saying that in no circumstance should another assault be made on "Hamburger Hill." To me, that would be a rather clear invasion of the President's power as Commander in Chief.

Professor MILLER. Why is it clear? To be clear, you have to have standards to judge by. All I am asking for are the standards. Where

do you find them and who sets them out or do you set them out in each case that comes along?

Mr. REHNQUIST. I think that you try to find them from historical precedents, from what was meant by the Framers at the time they gave the Commander in Chief power to the President, and from reasoning from other provisions of the Constitution. It is the most difficult area of all of the Constitution, I think, because it is amorphous. But I think it was designed by the framers to be amorphous and we just have to wrestle with it the best we can.

Professor BICKEL. He has the troops in his charge. Even under Cooper-Church, suppose he has now stationed the American troops near the Laotian border. Suppose there was an incursion into the area where his troops are legitimately stationed and they were attacked. I suppose neither Congress nor any power on earth under this Constitution could prevent the President from reacting to that attack and going into Cambodia or Laos when he reacts to it. That is clear and these are the powers of a commander of troops. But that is very different from deciding large foreign policy questions or initiating action. These can be historically reasonably clear things.

Professor WINTER. All of these things are in a continuum, after all. In some ways, McGovern-Hatfield contains fewer constitutional problems, because it seems a statement of general policy, than does Cooper-Church. But in McGovern-Hatfield when you set a specific date, you do raise a number of constitutional issues, because it says on a day you must be out. But these things are in a continuum. But I do not know that you can expect to set out standards and write up something like a debenture.

Professor MILLER. What are these problems? I do not want to get into a debate up here with you, but what are the problems that they create in setting a specific date? I do not see why there should be any more specific problem.

Professor WINTER. For one thing, I can well imagine the President saying to himself as Commander in Chief. "If I have to get out by December 31, the troops will be put in a very vulnerable state." They may be entirely destroyed whereas if 3 or 4 extra weeks were taken to effectuate the withdrawal in his judgment as Commander in Chief, based on the advice he has from military advisers, they can be withdrawn more safely. The basic policy of withdrawal can't be spelled out by Congress. It seems to me to be a problem to set a specific date for that withdrawal.

Professor MILLER. I still would like to come back, Mr. Rehnquist, because I am totally unclear, either in the abstract or in specific areas, just what the limits are on presidential power.

Mr. REHNQUIST. Let me toss another idea into the hopper if I may. I fully agree with Professor Winter that we are dealing with a continuum here. I can give an example at one end like "Hamburger Hill" which I regard as clear.

Supposing the United States had no troops in the Eastern Hemisphere at all, no troops and no naval dispositions in the Eastern Hemisphere. If Congress were then to prohibit the President from sending any troops into the Eastern Hemisphere and there was nothing of any continuing nature going on there that he could justify

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