have been those taken by Presidents during time of war. A listing of some of those by President F. D. Roosevelt should suffice to show what was involved:

In April 1942 the writer [Corwin] requested the Executive Office of the President to furnish a list of all the war agencies and to specify the supposed legal warrant by which they had been brought into existence. A detailed answer was returned that listed forty-three executive agencies, of which thirty-five were admitted to be of purely executive provenience. Six of these raised no question, for all they amounted to was an assignment by the President of additional duties to already existing officers and to officers most of whose appointments had been ratified by the Senate. Thus our participation in the Combined Chiefs of Staff became an additional duty of certain military and naval commanders, and the combined Raw Materials Board was a similar creation. Nobody was assigned to such duties who was not already in an office to which the duties were properly referable. But the Board of Economic Warfare, the National Housing Agency, the National War Labor Board, the Office of Censorship, the Office of Civilian Defense, the Office of Defense Transportation, the Office of Facts and Figures and the Office of War Information, the War Production Board (which superseded the earlier Office of Production Management), the War Manpower Commission, and later on the Economic Stabilization Board-all of these were created by the President by virtue of the "aggregate of powers" vested in him "by the Constitution and the statutes"-a quite baffling formula, . . . the invention of Mr. Jackson.66

To some extent, of course, such examples of executive power reveal only that when Congress delegates authority to an administrative agency it tends to lose control and that the administrator has considerable discretion to interpret his mission. De Tocqueville noted this in a somewhat different context, when he said:

When the central government which represents [the] majority has issued a decree, it must entrust the execution of its will to agents over whom it frequently has no control and whom it cannot perpetually direct. The townships, municipal bodies, and counties form so many concealed backwaters, which check or part the tide of popular determination."7

"CORWIN & KOENIG, THE PRESIDENCY TODAY 36 (1956). See generally CORWIN, THE PRESIDENCY: OFFICE AND POWERS (4th ed. 1957).

"DE TOCQUEVILLE, DEMOCRACY IN AMERICA 271 (Bradley ed. 1945). "[I]t is untrue that the decisions of the bureaucrats (public or private) are exclusively routine decisions. Many, indeed, are creative ones. not derived

\But over and above that is the fact that the growing number of such examples evidences the rise of what Roscoe Pound once called "executive hegemony" in government, of the desuetude of representative government. More and more, the President is asserting an independence from Congress, even in some instances where Congress has clear constitutional authority to act and has acted. The Constitution sets up a system of shared power and even of apparent legislative dominance but the flow of events is turning that system into something different in fact. The positive law bespeaks one thing, the "living law" of American constitutionalism quite another. The point advanced here is merely that presidential conditioning and impounding of funds is not unique. I do not suggest further that this exhibits even a limited type of cavalier disregard of the constitutional proprieties. The problem is much more complex and difficult.

The other aspect of the context in which the problem at hand may be viewed is that of the world situation—the total social milieu -against which the legal question is projected. This may be briefly set out for the point need not be labored that this is an age of revolution, of rapid social change, of even cataclysmic conflict. Turbulence is in the air, both domestically and planet-wide. That point is fast becoming a truism, and need not be expanded at this time.

But the implications are of fundamental significance in process of change is the very role of Congress in American government. That body stands as the last legislative institution of any real importance in the entire world; in no other nation, not even Great Britain, does the legislature have such a significant position as in the United States. But even so, what seems to be in process of being created by slow accretion-is executive government. A major contributing cause of this trend is the advent of new problems that government must grapple with and the acceptance of new responsibilities that government must fulfill. At the present time, it may be said, the trend toward executive dominance is still in its formative stages, but it is gathering speed and, if one may be pardoned a look into a cloudy crystal ball, will continue to do so. (It

from precedent or standing rules, but highly discretionary and thus essentially law-making in character." NEUMANN, THE DEMOCRATIC and the AUTHORITARIAN STATE 15 (1957).

"Cf. Miller, Notes on the Concept of the "Living" Constitution, 31 GEO. WASH. L. REV. 881 (1963).

is one of the fascinating aspects of American constitutionalism that such a marked change can-likely, will-take place within the confines of the fundamental law as written in 1787. The Constitution, with its built-in, planned-for ambiguity and flexibility, presents no substantial barrier to such a development. What it does do, however, is to institutionalize a political process, particularly with respect to the conduct of foreign relations, in which it is becoming more difficult to get government to govern adequately.) 69

69

"Contextual" analysis, however, presupposes certain standards by which data may be evaluated as to its relevance. The development of such standards and the selection of data to be employed in the resolution of constitutional questions presents most difficult questions. Few scholars have addressed themselves to them.70 The relevant context for the resolution of any constitutional problem requires, if it is to be adequately analyzed and projected, consideration of a wide-ranging amount of social, economic, and political data. Attempts by the Supreme Court to use this sort of information, while common enough, has not always been successful. The process of judgment is greatly complicated when "non-legal" data are used. It also poses critical questions about the competence of judges (or other decision-makers) to know, assimilate, and wisely use such information. The initial problem is: when are such data relevant -how are choices to be made from the mass of information that is available on any one question? The criteria of choice are not readily evident-just as the criteria of choice among (conflicting) relevant principles are not evident.71

2. Applicable "principle".—The question is one of presidential power. Is there any law to be applied? As noted above, a number

69

See Fulbright, American Foreign Policy in the 20th Century Under an 18th Century Constitution, 47 CORNELL L.Q. 1 (1961).

TO Among the few: MCDOUGAL & ASSOCIATES, op. cit. supra note 56, and other works by Professor McDougal; Mayo & Jones, supra note 52. "In this, lawyers seem to resemble scientists.

Deductive science (in contradistinction to descriptive sciences like geography and botany) begins with fundamental, unproved propositions which are verified only in their several consequences. The scientist does not seek to prove these axioms; rather, he accepts them provisionally, judiciously but without proof, hoping that their consequences agree with the facts. Nor is his attitude toward them one of avoidance or tolerance. He cannot get doing without them in spite of the circumstance that they represent precisely the opposite of what the popular view takes to be a fact.

MARGENAU, ETHICS AND SCIENCE 7 (1964).

of contemporary students of the Constitution maintain that the task of the Supreme Court (and presumably any other authoritative decision-maker) is to apply to the resolution of such a problem either the law as it has been received and understood or neutral principles; this is to be done by the mental process called "reason." These observers have been called the "counter-revolutionaries" among present-day legal theorists. The "interests" are to be "balanced," the result reached with little or no reference to the consequences that might flow from the result. The emphasis is upon the method, and those decisions are approved that are made through the operation of "due procedure" of the adjudicative process. What, then, does this approach offer to the problem at hand? Which principles may be identified and applied?

The cases are sparse, and of those remotely relevant none are directly on point. The reasoning process must be one by analogy and the initial search is for the apposite decision. A pertinent first question is this: when is an analogy sufficiently apposite to be employed?72 The general question aside as beyond the scope of the present article, a group of judicial decisions may be identified, which, when analyzed, appear to produce at least two principles which are inconsistent. On the one hand, a clutch of recent cases collectively may be said to illustrate the proposition that the Executive must find a statutory basis for the exercise of power; or at least, in accordance with Mr. Justice Jackson's concurring opinion in the Steel Seizure Case,73 presidential power varies with the degree to which he acts in cooperation with Congress.

When he acts, said Jackson, pursuant to an express or implied authorization of Congress, his authority is at its maximum. When he acts in absence of a congressional grant of authority, he can rely only on his own independent powers,

but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.74

Cf. LEVI, AN INTRODUCTION TO LEGAL REASONING (1949). 18 343 U.S. at 634.

" Id. at 637.

Mr. Justice Jackson went on to maintain that when the President takes measures incompatible with the expressed or implied will of Congress, "his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter."

77

Decisions in the same vein are Kent v. Dulles,76 Cole v. Young," and Peters v. Hobby,78 which together with the majority in the Steel Seizure Case indicate that the Supreme Court feels that limits exist to executive or administrative power and that, to an undetermined extent, the Executive must in some instances receive authority from Congress to act.

81

That is one line of cases. Another suggests a contrary proposition: that the President can act without prior congressional authorization. Illustrative here are the following cases: Midwest Oil Co. v. United States,70 United States v. Pewee Coal Co.,80 Greene v. McElroy, and the Japanese Exclusion Cases.82 In each of these the Court indicated, either by holding or otherwise, that some sort of presidential power existed independent of Congress. Quite obviously, then, what is revealed is a situation reflecting the existence of the Principle of Doctrinal Polarity, that is, inconsistent principles travelling, as Professor M. S. McDougal has said, in "pairs of opposites. "'83

What the Supreme Court has said in the past cannot determine the nature and extent of the President's powers. The law as it has been received and understood is inconsistent and the "specter of conflicting neutral principles" can be raised. Is there a way rationally to resolve the question? The problem is more than application of "the law." In fact, it appears to have at least two, perhaps three, other dimensions. In addition to applicable principle

82

1360 U.S. 474 (1959).

E.g., Korematsu v. United States, 323 U.S. 214 (1944).

E.g., McDougal, The Ethics of Applying Systems of Authority: The Balances Opposites of a Legal System, in THE ETHICS OF POWER: THE INTERPLAY OF RELIGION, PHILOSOPHY, AND POLITICS 221 (Lasswell & Cleveland eds. 1962).

"Miller & Howell, The Myth of Neutrality in Constitutional Adjudication, 27 U. CHI. L. REV. 661, 663 (1960).