Page images
PDF
EPUB

a judge-made limitation upon the jurisdiction of federal courts. Although there is an understandable reluctance of the judiciary to intervene in disputes between the political branches of government, nevertheless such a statute appears constitutional feasible and-in my judgment—somewhat more desirable than the other alternative discussed above. Although the law of standing is, as Justice Frankfurter once said, a very complicated aspect of federal jurisdiction, a statute permitting Congress to trigger the judiciary would seem to satisfy the requirements of "justiciability"-of being a "case or controversy" within the meaning of Article III of the Constitution-and thus would not require federal judges to issue advisory opinions, something the Supreme Court held in Muskrat v. United States the Congress cannot do. My reasons for this conclusion follow. The jurisdiction of federal courts has, since the judiciary act of 1789, been held, save in instances of the original jurisdiction of the Supreme Court, to be dependent upon statutory authorization. So long as there is an actual controversy, with adverse rights in contention, it cannot seriously be argued that Congress cannot confer upon persons, including itself, that status called "standing" that the Supreme Court might, as an original matter, hold otherwise. For example, under the Freedom of Information Act, amending Section 3 of the Administrative Procedure Act, Congress has said-without challenge-that "any person" has a judicial remedy (in that he can get a determination in court) for refusal of government agencies to divulge information. Even if there is no actual controversy, even, it seems, if one merely wants to satisfy his idle curiosity, he can still pursue his statutory remedies under the Freedom of Information Act. (This, of course, does not mean that he will prevail, but it does mean that the judicial door will not be slammed in his face.) That Congress could by statute permit its committees to invoke the judicial process would seem to be beyond argument. See Moss v. Civil Aeronautics Board, 430 F.2d 859 (D.C.Cir. 1970), a case in which the Court of Appeals permitting a number of Congressmen, without the benefit of a statute, to challenge a CAB ruling.

Furthermore, the federal courts themselves have greatly loosened standing requirements in recent years, so as to enlarge the category of persons able to trigger the judicial process to contest administrative action. See Gellhorn & Byse, ADMINISTRATIVE LAW: CASES AND COMMENTS 139-88 (5th ed. 1970) for a collection of cases. The clear and unmistakable trend is toward making standing an impediment of little or no consequence in the judicial process.

Assuming a favorable judicial ruling, both on standing and on the merits of any assertion of executive privilege or other secrecy doctrine, an Executive officer would then be subject to the contempt powers of the courts if he still refused to comply with Congressional requests for information. It is my view that this second type of statute is the more desirable; and I recommend that the Subcommittee address itself to its feasibility and desirability.

6. The need for a "lawyer for Congress." Litigation within the federal government is centralized in the Department of Justice. For most purposes, this has proved to be a useful and desirable way of controlling matters. But a problem arises when conflicts occur between Congress and the Executive. There can be no doubt that the Attorney General, now and in the past, considers himself to be "the President's lawyer." Who, then, is to represent Congress when a conflict occurs between the political branches? At the present, there is no one. This suggests the need that, if any type of statute is enacted dealing with executive privilege and other secrecy policies, Congress should also provide for institutionalizing "a lawyer for Congress." Cf. Powell v. McCormack, U.S. (19), a case in which the House of Representatives retained special counsel to represent Speaker McCormack.

The problem, to be sure, is broader than secrecy policies, however important they are. For instance, should an attempt be made to challenge Presidential use of the pocket veto in statutes such as the Family Practice of Medicine Act (see "Constitutionality of the President's 'Pocket Veto' Power," Hearing Before the Subcommittee on Separation of Powers, Jan. 26, 1971, particularly the views of Senator Edward M. Kennedy), or impoundment of appropriated funds, the question of who would represent Congress in the litigation would immediately emerge. Hence, it is my view that, irrespective of the conclusion the Subcommittee comes to on executive privilege, it should in addition con

sider-perhaps in separate hearings-the need for a "special counsel for the Congress," a permanent officer with a small staff. This could be modelled on, say, the Office of the Solicitor General of the United States.

7. Executive privilege in litigation against the government. In addition to employment of the dubious doctrine of executive privilege before the Congress, the Executive also uses it at times when private individuals (including corporations) sue the government under such statutes as the Federal Tort Claims Act. The leading case is United States v. Reynolds, reproduced in Gellhorn and Byse, supra, in which the Supreme Court refused to order production of an Air Force accident report concerning an airplane crash that damaged the plaintiff. I recommend that serious attention be accorded the problem of executive privilege in litigation against the government.

8. I have considered, but rejected, the possible applicability of the criminal law to situations involving invocation of executive privilege. It is too similar to impeachment to be a viable remedy. Similarly, such political "remedies" as withholding appropriations from agencies whose officials refuse to cooperate would not appear to be feasible.

9. The arguments against limitation of the use of executive privilege tend to be "political" or "policy" rather than "legal" or "constitutional." They include the need for flexibility of response and rapidity of action if the urgent tasks of government are to be accomplished. And there undoubtedly are times when secrecy is necessary, possibly, as with the CIA, from Congress generally (although I do not make a judgment on that point). But while these policy arguments make the problem facing the Subcommittee more difficult, they certainly do not outweigh, in my considered judgment, the pressing and even overriding requirement for greater accountability in government. That accountability must be based on facts, facts that are normally mainly within the knowledge of the Executive Branch. I perceive no insuperable barrier, either in law or in policy, to enactment of a statute such as I have outlined above.

This is, let me emphasize, not to suggest that government officers are evil or that they routinely deceive Congress. That they do deceive at times has been revealed by publication of the "Pentagon Papers" in June 1971. But officials can and do err or pursue ends not hammered out on the anvil of public discussion. Professor Charles Reich of the Yale Law School put the point in somewhat different terms recently: "Evil now comes about," he said, "not necessarily when people violate what they understand to be their duty but, more and more often, when they are conscientiously doing what is expected of them.' (Quoted in Time, June 28, 1971.) Ultimately, executive privilege raises a question of the meaning to be given the First Amendment, of not only Congress's but the people's right to know how the public administration operates. I think that Congress should legislate, so as to eliminate present uncertainties in the law.

10. Handling more information effectively. One final problem is suggested by the foregoing: The extent to which Congress has the institutional capacity to deal effectively with a greater flow of information from the Executive. As matters stand now, no doubt a flood of information comes to Congress from the Executive, to an extent that it cannot presently be adequately assimilated. What this means, in essence, is that Congress today does not have the institutional capability to review in detail vast amounts of data, some of which is so highly complex that it calls for specialized knowledge. The situation may best be seen, perhaps, in areas of science and technology and in complicated matters of economic policy. Speaking generally, and with some notable exceptions to the contrary, Members of Congress and their staffs do not possess the requisite training and backgrounds to be able to deal effectively with the information presently transmitted by the Executive (and by private organizations).

This situation, to be sure, has been widely recognized by individual members of Congress, some of whom have called for taking steps to enhance the capability of the legislative branch to perform its constitutional responsibilities. Without going into the matter further. I merely suggest that it would be advisable at this time to devote attention to the problem of devising ways and means of improving that capability in a wide range of public-policy matters that routinely or even occasionally come before Congress for consideration. In other words, obtaining more information from the Executive is of minimal use unless there is an established way of handling it in furtherance of the consti

tutional scheme. However, even without an enhanced capability, there is no question in my mind that Congress needs, and should have, more information from the Executive. To the extent that executive privilege, and other secrecy techniques, tend to stem the flow of information, steps should be taken to correct the situation. As has been said, a statutory remedy could go far toward correcting an intolerable situation.

STATEMENT BY PROFESSOR HANS J. MORGENTHAU

The relations between the President and Congress are founded upon the cornerstone of the separation of powers according to which the President has the authority to execute policy while Congress has the authority to set legislative limits to that policy and to scrutinize its execution. The routine invocation of Executive privilege, preventing members of the Executive Branch from appearing and testifying before Congressional committees, has drastically curtailed the ability of Congress to perform its constitutional powers of control over the Executive Branch. I should note in passing that the same effect is achieved by the routine classification and overclassification of official documents by the Executive Branch.

Bill S. 1125 is a minimal step toward the reassertion of the constitutional prerogatives of Congress without impairing in the least the legitimate interest of the Executive in the confidentiality of those of its communications and policies whose publication might injure the vital interests of the United States. The bill under consideration is an indispensable first step if the constitutional balance between the Executive and Legislative Branches of the United States government, at present so drastically tilted in favor of the former, is to be restored.

[This memorandum is adapted from an article entitled "Constitutional Limits on Executive Authority," by Professor Robinson, which appeared in Christianity and Crisis, January 11, 1971.]

CAN CONSTITUTIONAL BALANCE BE RESTORED IN THE MAKING OF FOREIGN POLICY? STATEMENT BY DONALD L. ROBINSON, ASSOCIATE PROFESSOR OF GOVERNMENT, SMITH COLLEGE AND VISITING FELLOW, CENTER FOR THE STUDY OF DEMOCRATIC INSTITUTIONS

The struggle over American policy in Indochina has renewed one of the perennial arguments in American politics. What are the relative responsibilities of the President and Congress for the conduct of foreign policy? America's desire to serve as architect and guarantor of world peace, coupled with a growing awareness of the limits of her capacity to fulfill this assignment, has given new urgency to the constitutional question. Who shall determine how American power is to be used in the world arena? The answer that emerges from current political processes will determine the viability of the Constitution as a frame of democratic government.

In addressing this problem it is necessary to transcend the demands of a given historical moment. The history of this controversy is full of statements that reflect the spokesman's attitude toward the policies of a particular President or Congressional leadership. In the late 1950's and early 1960's, for example, Senator Fulbright was calling for vigorous Presidential leadership in the field of foreign relations and urging Congress not to impede the President's efforts. The vision that prompted Fulbright's encouragement of Presidential statesmanship was widely shared in the days of the Peace Corps, the Alliance for Progress and the Nuclear Non-Proliferation Treaty.

By 1964 the President was asking Congress to support his determination to "take all necessary measures" to prevent further aggression in Viet Nam. Fulbright, apparently from inertia, supported the Gulf of Tonkin Resolution, but soon he was bemoaning Congress' habitual deference to Presidential leadership. In 1969 he led the Senate in resolving that a commitment to use American resources (military or financial) in a foreign land should result only from action taken jointly by the executive and legislative branches.

The tendency to consider this question in terms of immediate circumstances is not confined to politicians in the heat of battle. For instance, Harold Laski's excellent book, The American Presidency (1940), bears the marks of its time

most obviously in its discussion of the role of the President in foreign policymaking. Laski devotes much of his book to arguing that the President alone is in the position to comprehend the nation's situation vis-a-vis foreign powers, and is alone capable of acting with the speed, flexibility and resoluteness required to protect American interests abroad.

By now these points are familiar. But in 1940 Laski was addressing a nation whose reaction to Roosevelt's quarantine speech had been chilly and whose Congress had deep misgivings about entering a world war. Laski's implicit advice to Congress was to stop quibbling and get out of the President's way. Twice he quoted Jeffersons' aphorism that "the transaction of business with foreign nations is executive altogether." There is almost no hint in the book that Congress might have a fruitful or constructive role in the making of foreign policy.

The discrepancy between Laski's counsel and the present tendency of those who oppose our policy in Indochina to look to Congress suggests the need for a deeper probe into the rationale behind American foreign policy-making. How did the framers intend that foreign policy be made? When and why did Presidents take control in this area? What factors reinforce that control? What case can be made for restoring the balances fashioned by the framers?

On the face of it, the constitutional structure for making foreign policy seems heavily weighted in favor of legislative over executive action. Many of the legislative powers enumerated in Article I touch directly or indirectly upon foreign relations: Congress has power to establish tariffs, regulate commerce with foreign nations, raise armies and navies and declare war.

By comparison, the President's stated powers are meager. He is authorized to "make" treaties "by and with the advice and consent of the Senate," at least two-thirds of which must concur before a treaty can be ratified. He may nominate ambassadors, but the consent of the Senate is required for appointment. He is made Commander-in-Chief of the armed forces, but the exercise of this authority is dependent upon the maintenance of armed forces. Finally, the President is given the task of receiving ambassadors.1

The search for clues to the true intention of the framers is complicated by the relative inattention of the Constitutional Convention of 1787 to the specification of Presidential power. In fact, Presidential power was handled indirectly, by the careful delegation to Congress of powers typically appropriated by kings. The American Chief Executive was prevented from becoming an elective monarch, because powers essential to that design were committed to the more "popular" branch of government. In fact, the office of President was not even associated with the work of treaty-making until a week before the Constitutional Convention adjourned. Until then, the Convention had assigned this responsibility solely to the Senate.

This evolution away from a purely ministerial conception of the Presidency, which began just before the Convention adjourned, continued in The Federalist Papers. The conditions that encouraged the emergence of Presidential control over foreign affairs are foreshadowed in Hamilton's 23rd Federalist paper, which deals with the need for a national government.

A nation, wrote Hamilton, exists in an environment that is certain, from time to time, to be hostile. This fact creates demands upon all governments that they cannot ignore without disastrous consequences. It is logically possible, argues Hamilton, to hold to a position of philosophical anarchism and to deny that governments ought to exist at all. But once the proposition is accepted that governments are necessary to render the life of man safe and agreeable, one must not stop short of granting them adequate power to defend themselves. As Hamilton saw it, the demands upon government were harsh and could not be made to conform to the requirements of a tamed executive.

In paper #70 Hamilton assumes, as a proposition beyond dispute, that the executive must be "energetic." A feeble executive must be a bad executive: a government badly executed must be a bad government. And what are the marks of an energetic government? "Decision, activity, secrecy and dispatch,"

1 This assignment was later taken to imply a discretionary authority to refuse to receive ambassadors and thus to deny recognition to foreign regimes. That the framers intended otherwise, however, is suggested by a passage in The Federalist Papers [69] where Alexander Hamilton states that this responsibility is "without consequence," "more a matter of dignity than of authority."

all of them more likely to inhere in a unified executive than in a numerous assembly.

John Jay, in paper #64, relates these qualities to the problem of foreign policy-making. Jay, who had served as Secretary of Foreign Affairs under the Articles of Confederation, argues that treaties can only be made by the President. "Secrecy" and "dispatch" were often essential in diplomatic negotiations. Important intelligence would more often be given in confidence to a single executive than to a committee or assembly, and a single President could act more promptly and electively than a legislature divided by party competition and personal rivalry.

NEW ERA OF FOREIGN RELATIONS

During the first century under the Constitution, foreign policy-making readily fell into a pattern of executive initiative and Congressional reaction. In the conflict with Mexico over Texas, congressional "war hawks" contributed mightily to the agitation that led to the War of 1812, but it was President Madison who defined the causes and aims of war, managed the military effort, such as it was, and negotiated the peace that established the basis for postwar Anglo-American relations. Thus, even this most self-effacing President found himself at the helm, where foreign policy and war were concerned. Similarly, President Polk, primarily through the exercise of his powers as Commander-in-Chief, confronted Congress with accomplished facts. Although Congress went through the ritual of declaring war in 1846, it merely acknowledged that a state of war "existed," thereby giving sanction to what the President was already doing in joining battle with the Mexicans.

Experience in the nineteenth century showed that the Presidency tends to predominate in emergencies, especially in wartime. What kept the Presidency in balance with the rest of the constitutional system during the first century under the Constitution was that foreign wars were infrequent.

The really decisive expansion of Presidential power did not come until the dawn of the twentieth century. During the nineteenth century, wars arose mainly from efforts by the government to assert and defend its sovereignty over its own territory. Beginning with the McKinley administration, however, Presidents and Secretaries of State began seriously to entertain the ambition of moving beyond American soil; to influence and ultimate to control the destiny of other nations; and to do so, not by treaties duly negotiated and ratified with the advice and consent of the Senate, but by executive agreements and other instruments of Presidential policy. When McKinley dispatched troops and a supporting naval contingent to join in the suppression of the Boxer Rebellion, and when Secretary of State John Hay implemented the Open Door Policy by an exchange of official correspondence with foreign powers, the United States emerged into a new era of foreign relations. Henceforth, the people of Europe and Asia would be vitally and directly affected by decisions made within the executive branch in Washington.

What was different here was not so much America's impact on the world. The significant thing was that foreign relations now began to be conducted by the President acting on his own authority. "Executive agreements," which had always been used for routine matters of foreign policy (such as minor boundary adjustments, postal agreements and the regulation of fishing rights), came now to be used for matters of great importance, occasionally producing temporary alliances and often exercising far-reaching influence over foreign affairs.

The process by which Roosevelt took this country into World War II is a remarkable case of Presidential action determining the shape of foreign policy. The exchange of destroyers for naval bases, arranged with Great Britain by Secretary of State Cordell Hull, converted the United States from neutrality to semi-belligerency. This action was subsequently regularized by legislation, but when it was undertaken it stood in direct opposition to the constitutional provision that the authority to "dispose" of all property belonging to the United States rested with Congress. Roosevelt, however, determined that the situation was too urgent to permit constitutional scruple to interfere with the performance of his duty. As Hamilton had argued in Federalist paper #23, when an end is required, the means necessary for its accomplishment can be assumed. The President had sworn to "preserve, protect and defend" the Constitution. In 1940, in Roosevelt's judgment, this

« PreviousContinue »