1114 1365 to be assured by "an independent evaluation" that his office "is doing a thoroughly adequate job in its surveys of management concepts. The request for the completed report, be it noted, represented no attempt to "control the execution" of a law but rather an attempt after completion of an executive function to evaluate performance. Stated baldly, the Secretary told Congress that effective performance of the delegated duty required him to withhold details of performance. Congress replied, in effect, that even if the job were to be less well done, it must know how it was being done in order to determine whether to transfer, reorganize or abolish the function. Balancing necessities of government, as is essential in weighing conflicting claims of power, the question is whether the alleged executive desire to improve performance-which more than once has served as a screen for incompetence and waste366_shall be permitted to outweigh the congressional duty to ferret out inefficiency and the need to legislate and appropriate intelligently.367 This incident illustrates the lengths to which the claim of privilege has been pushed and the frivolous grounds on which disobedience of a statute has been based, if indeed one ground more than another can be deemed to extenuate the disobedience.368 The unhesitating assumption of the Attorney General and the executive branch that executive privilege rises above compliance with a duly enacted statute constrains me to belabor what seems obvious. This privilege, it will be recalled, was based on the duty "to take care that the laws be faithfully executed." It is a feat of splendid illogic to wring from a duty faithfully to execute the laws a power to defy them; and it runs head on into an early Supreme Court pronouncement: "To contend that the obligation imposed 365 Moss Hearings 3654. 366 See notes 30-31 supra and text accompanying note 516 infra. 367 The Attorney General himself states that "the legislative branch is justly entitled to be properly informed of the activities of the executive branch. Intelligent legislation and the duty of the House and Senate to appropriate money for governmental expenditures, require access to information." Then he goes astray: "However, we must not confuse comity and reasonableness . . . with the sometimes asserted right of the Houses of Congress to all information and papers in the executive branch." Att'y Gen. Memo. 70. (Emphasis added.) In other words, the Congress is "entitled" to see so much of the information which is "required" for legislation and appropriation as the executive by "comity" sees fit to show! 368 Schwartz 40, points out that this "extreme assertion of privilege in the face of a statute was made without the slightest awareness by the President of what was being done. We know that this is true because the President candidly admitted his ignorance of the matter at his November 5, 1958, press conference." The President's "admission" was embarrassed rather than "candid." See Moss Hearings 3706-07. 1965] WITHHOLDING INFORMATION 1115 upon the president to see the laws faithfully exccuted implies a power to forbid their execution, is a novel construction of the Constitution, and entirely inadmissible." Even in the field of foreign relations, where the President exercises the least circumscribed powers," a70 "it was intimated that the President might act in external affairs without congressional authority, but not that he might act contrary to an act of Congress."71 The stiff-necked Jackson, who had been charged with asserting that he was "not bound to carry" into effect a law which "he believed" unconstitutional, said Tancy, a member of his Cabinet, "never expressed a doubt as to the duty and obligation upon him in his Executive character to carry into execution any Act of Congress regularly passed, whatever his own opinion might be of the constitutional question."872 What!, it may be asked, can Congress coerce 309 Kendall v. United States, 12 Pet. (37 U.S.) 524, 613 (1838). When the opinion was delivered in open Court it contained a passage which led AttorneyGeneral Butler to rise and say that "it had been stated ["urged at the bar"] that the obligation imposed on the President to see the laws faithfully executed implied a power to forbid their execution. For himself, he disclaimed such a doctrine..." and asked the Court to expunge the reference. The Justices said they understood that he had in fact made such a claim, and Justice Wayne stated that he had heard the doctrine "with equal astonishment and indignation. He had not supposed there was any intelligent man in the country so ignorant of the principles of our Government and institutions as to entertain such a principle; much less could he have anticipated that it would ever be advanced before that tribunal by distinguished professional gentlemen." 2 WARREN 320. The opinion was modified, however, in accordance with Butler's request. Id. at 320. Earlier it had been said: "The President of the United States cannot control the statute, nor dispense with its execution, and still less can he authorize a person to do what the law forbids. If he could, it would render the execution of the law dependent on his will and pleasure; which is a doctrine that has not been set up, and will not meet with any supporters in our government." United States v. Smith, 27 Fed. Cas. 1192, 1230 (No. 16342) (C.C.N.Y. 1806). (Emphasis added.) Still carlier, in 1794, Mr. Sedgwick said on the floor of the House: "There was, in fact, in no instance an authority given to the Executive to repeal a Constitutional act of the Legislature." 4 ANNALS OF CONG. 570 (1794). Professor Davis concludes that: "Only the courts have authority to take action which runs counter to the expressed will of the legislative body." 3 Davis, ADMINISTRATIVE LAW TREATISE 74 (1958). 870 Cf. United States v. Curtiss Wright Export Corp., 299 U.S. 304 (1936). 871 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-36 n.2 (1952) (Jackson, J., concurring). See also concurring opinion of Frankfurter, J., id. at 602. As Mr. Justice Jackson said: "When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb." Id. at 637. 872 Quoted in 1 Warren 763-64. In 1790, Jefferson, then Secretary of State, said: "The Executive, possessing the rights of self government from nature, cannot be controlled in the exercise of them but by a law, passed in the forms of the Constitution." Quoted by Corwin, The Steel Seizure Case 53-54. President Theodore Roosevelt was of the same opinion: "Heads of the Executive departments are subject to the Constitution, and to the laws passed by the Congress in pursuance of the Constitution." Quoted in Att'y Gen. Memo. 17. President Polk said of a statute that "it is binding upon all the departments of the Government, and especially upon the Executive, whose duty it is 'to take care that the laws be faithfully executed.'" 1116 UCLA LAW REVIEW [Vol. 12: 1043 the President by an "unconstitutional" statute? In 1854 Attorney General Cushing advised the President that Congress cannot pass any law, which, in effect coerces the discretion of the The President may veto a bill on constitutional grounds; but by providing that Congress could then pass it over his veto, the Constitution plainly indicates that the President is bound by that law.374 4 RICHARDSON 432. To be sure, the statute in this case authorized Polk to withhold information, but it would be novel doctrine that would make the "faithfully executed" duty turn on whether it served executive purposes or not. President Grant, exasperated by an attempt to embarrass him by an inquiry whether he had spent the hot months away from Washington, said that the Constitution placed no limitation as to the place where the President's power shall be exercised, and that were there a restrictive statute: "I should nevertheless recognize the superior authority of the Constitution, and should exercise the powers required thereby of the President." Att'y Gen. Memo. 13. Even if this particular Presidential prerogative can not be restricted by statute, it does not follow that the President may finally determine that an attempted restriction is unconstitutional. That task was left to the courts. 373 6 OPS. ATT'Y GEN. 680, 682 (1854). (Emphasis added.) When, therefore, Attorney General Rogers says that "a law which would compel heads of departments to give information and papers to ... Congress" would, "according to Attorney General Cushing... be subversive of our form of Government," Att'y Gen. Memo. 48-49, he perverts Cushing's statements and ignores the fact that Cushing unmistakably regarded existing law requiring department heads to furnish information to Congress as binding. See text accompanying notes 104-05 supra. Attorney General Homer Cummings, referring to the situation where the "Attorney General is asked to pronounce upon the constitutionality of a statute after it has been passed by the Congress and approved by the President," stated in an opinion to the President that: "Both then have evidenced their determination that the measure is constitutional. What before remained in the sphere of debate has now been elevated to the domain of law." SWISHER, SELECTED PAPERS OF HOMER CUMMINGS 276 (1939). 374 "The President is an agent selected by the people, for the express purpose of seeing that the laws of the land are executed. If, upon his own judgment, he refuses to execute a law and thus nullifies it, he is arrogating to himself controlling legislative functions, and law's have but an advisory, recommendatory character, depending for power upon the good-will of the President. That there is danger that Congress may by a chance majority, or through the influence of sudden great passion, legislate unwisely or unconstitutionally, was foreseen by those who framed our form of government, and the provision was drawn that the President might at his discretion use a veto, but this was the entire extent to which he was allowed to go in the exercise of a check upon the legislation. It was expressly provided that if, after his veto, two-thirds of the legislature should again demand that the measure become a law, it should thus be, notwithstanding the objection of the Chief Executive. Surely there is here left no further constitutiona! right on the part of the President to hinder the operation of a law." 3 WILLOUGHBY, THE CONSTITUTIONAL LAW OF THE UNITED STATES 1503-04 (2d ed. 1929). (Emphasis added.) Once the veto power has 1965] WITHHOLDING INFORMATION 1117 If in fact the law thus enacted is unconstitutional,375 it is for the courts to decide, the protection the Constitution affords against all usurpations of power. It was a former Attorney General, Mr. Justice Jackson, who said that "with all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations."376 * History, the traditional index of constitutional construction, discloses that a sweeping power of legislative inquiry had been exercised by Parliament and by the colonial legislatures. There is no intimation in the records of the Convention that the executive was to be shielded from the familiar legislative power. The criticism stirred by the express provision for secrecy of the congressional journals rebuts any inference that the less favored executive was given an implied power to keep secret from Congress-the lawmaker-whether the laws were being "faithfully executed." The power of inquiry was immediately asserted by the First Congress with the concurrence of President Washington. There is no need to insist that history is conclusive; it suffices that it furnishes a necessary beginning upon which reliance can be placed until there is clear reason for change. The second installment of this study will assay the practical reasons which have been advanced for such a change, and will also show that the claim of absolute discretion to withhold from Congress far exceeds the limited privilege given recognition by the courts in private litigation. Inasmuch as claims of absolute power are out of favor, and since neither disputant should be permitted been exercised, "this power of self-defense is at an end; and once a statute has been duly enacted, whether over his protest or with his approval, he [the President] must promote its enforcement . . . ." CORWIN 66. 375 Attorney General Homer Cummings found "grave objections" to the rendition of opinions upon request from agency heads respecting "the constitutionality of laws they have been appointed to administer," saying: "There is no warrant for such requests as the presumption of validity is binding upon them and they must act accordingly." SwISHER, op. cit. supra note 373, at 274. (Emphasis added.) 'n another opinion, Attorney General Cummings said that: "The constitution has vested in no . . . officer the power to remove an enactment of the Congress from the statute books upon the ground of its invalidity." 38 OPS. ATT'Y GEN. 252, 257 (1935). "[C]onsideration for the orderly, efficient functioning of the processes of government," it was said in Panitz v. District of Columbia, 112 F.2d 39, 42 (D.C. Cir. 1940), "makes it impossible to recognize in administrative officers any inherent power to nullify legislative enactments because of personal belief that they contravene the constitution." 376 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 655 (1952) (concurring opinion). 68-287 O 719 1118 UCLA LAW REVIEW [Vol. 12: 1043 finally to draw boundaries which encroach on the claimed powers of the other, the concluding portion of the second installment will consider whether the courts may take jurisdiction of the dispute. That issue will be examined from three aspects: (1) does the dispute give rise to a "case or controversy"; (2) would either branch have "standing to sue"; and (3) does the dispute involve a nonjusticiable "political question."+i APPENDIX Unless otherwise indicated the following authorities are cited by author's name only. BOOKS BARTH, GOVERNMENT BY INVESTIGATION (1955) BEMIS. JAY'S TREATY (1923). BEMIS, JOHN QUINCY ADAMS AND THE UNION (1956) [cited as BEMIS, JOHN QUINCY ADAMS). BICKEL, THE LEAST DANGEROUS BRANCH (1962) [cited as BICKEL, LEAST DANGEROUS BRANCH]. BOWEN, THE LION AND THE THRONE (1957). CHANDLER, HISTORY AND PROCEEDINGS OF THE THIRD PARLIAMENT OF KING GEORGE II (1743). CORWIN, THE PRESIDENT: OFFICE AND POWERS (4th ed. 1957). Curtis, The Role of the Constitutional Text, in SUPREME COURT AND SUPREME LAW (1954) [cited as CURTIS]. DE TOCQUEVILLE, DEMOCRACY IN AMERICA (1945). FARRAND, THE FRAMING OF THE CONSTITUTION OF THE UNITED STATES (1948) [cited as FARRAND, FRAMING]. FARRAND, RECORDS OF THE FEDERAL CONVENTION OF 1787 (1911) [cited as GELLHORN & BYSE, ADMINISTRATIVE LAW: CASES AND COMMENTS (1960). HAND, THE BILL OF RIGHTS (1958). HINDS, PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES (1907). HOCKETT, THE CONSTITUTIONAL HISTORY OF THE UNITED STATES, 1826-1876 (1939). HOLMES, COLLECTED Legal Papers (1920). HURST, JUSTICE HOLMES ON LEGAL HISTORY (1964) [cited as Hurst, JustICE HOLMES]. Hurst, The Role of History, in SUPREME COURT AND SUPREME LAW (1954) [cited as HURST, THE ROLE OF HISTORY]. JEFFERSON, WRITINGS (Ford ed. 1892). KOENIG, THE INVISIBLE PRESIDENCY (1960). † Part II of this article will appear in the August 1965 issue of the UCLA Law Review. |