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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- I'right 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 bevond 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- IV right to its full extent as establishing aif 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. REINQUIST. 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 vou 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. REHXQtIst. 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 r 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 dest royed 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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as a basis for sending troops by reason of a treaty or something like that, I think, in that situation, that is certainly the prerogative of Congress.
Senator GURNEY. Well, suppose in the Eastern Hemisphere you had a missile site and your intelligence told you that 2 weeks from today, they were going to land a missile on the Capitol of the United States from that site located in the Eastern Hemisphere. Then what would the President be emowered to do or not empowered to do?
Mr. REINQUIST. I think tliere he would have a, needless to say I am speaking very much off the cuff, but
Senator GURNEY. We probably ought to make it 24 hours so that Congress would not have time to act in this situation.
Mr. REHNQUIST. Certainly he ought to go to Congress if there is time. But on the same theory that he can decline to spend the full million dollars for eliminating the Mediterranean fruit fly if it only takes half a million dollars, and that he can cause a reserve to be created in an appropriation if he finds that the purpose of Congress can be served by doing that, I think under those circumstances, he would have the authority to disobey the law that Congress had passed. I think he would not be disobeying it. He would, in effect, be perfectly right in concluding that Congress had not intended it to apply to this situation.
Senator GURNEY. That was the only point I was making.
Senator Ervin. That would be a threatened invasion, would it not, and he has power under the Constitution to repel invasions. Mr. REHNQUIST. Yes.
Senator ERVIN. So this is a rather remarkable incident, really. The more I think of the situation, the more marvelous it becomes to me.
Professor MILLER. May I say that is an instance in which I would think the President, at least in my judgment, not only has the power but the obligation to act in certain instances. But I am a little reluctant to put it on the basis of law. I am willing to go along with Justice Jackson in his opinion in the Korematsu case and say there are certain instances where we do not want to put the color of law on some of these things. If the survival of the Nation is at stake, even the survival of some soldiers, yes. But put this under the color of law, then we are running down dangerous paths. I would prefer, as Justice Jackson said, in the Korematsu case, to go ahead and do it, but do not come up to the Supreme Court and get a stamp of approval for it.
Mr. REHNQUIST. If you add that qualification, certainly there are many questions that do not readily lend themselves to judicial decision. I would personally dislike the inference that the President is not under law in some situations. I agree with the chairman that if you look at the Constitution and read cases like In re Neagle and Curtiss-Wright, the President has the powers under the law that are necessary to respond to these emergencies. But I would shy away from the doctrine that he is a law unto himself under certain circumstances.
Professor MILLER. If you want to define law, I think you can, as the Red Queen did, define it any way you want. But you shoot your
self down because you bring everything under the word “law.” If law does not mean you cannot do something under certain circumstances, it does not mean anything.
With this idea, I would suggest that there is an area of undefined Executive powers in which the President not only may, but in certain circumstances should act.
Professor BICKEL. Mr. Rehnquist, could I just read into the record a couple of sentences from the opinion of your office which is in the Congressional Record of January 20, which seemed to me to bring us back to the issue that we started with and are very telling on it.
It may be argued :
That the spending of money is an inherent executive function but the execution of any law is by definition an executive function and it seems an amorphous position that because the executive branch is bound to execute laws, it is free to decline to execute them.
Now, you are talking about mandatory things. Then there is another passage where you say it is the President's duty to take care that laws are faithfully executed. The argument, you say, that he may withhold expenditures "carries weight in the situation in which the President is faced with conflicting statutory demands”—I suppose you have in mind their ceilings—"as, for example, where to comply with the direction to spent might exceed the debt limit or a limit imposed on total obligations and expenditures. But it appears to us necessary for the conflict to be real and iminent for this argument to have validity. It would not be enough that the President disagreed with spending priorities established by Congress.”
Do you still agree with that?
Senator ERVIN. I want to take this occasion to thank you not only for your assistance at this time but on previous occasions we have asked you to come and give us the benefit of your views. You have been very helpful to this subcommittee and other subcommittees on which I have served on a number of occasions.
Mr. REHNQUIST. I have learned to look forward to your subcommittees, Mr. Chairman. It is always a pleasure to appear before you.
Senator ERVIN. The subcommittee stands in recess until 2 o'clock.
(Whereupon, at 11:40 a.m., the subcommittee was recessed until 2 p.m. of the same day.)
Mr. EDMISTEN. Mr. Chairman, the first witness this afternoon is the Honorable Robert Keller, Assistant Comptroller General of the United States and Mr. Paul Dembling is the General Counsel.
STATEMENT OF ROBERT F. KELLER, ASSISTANT COMPTROLLER