1965] WITHHOLDING INFORMATION 1069 "they would conceal nothing, but what is would be unsafe to publish."123 And Iredell added that: In time of war it was absolutely necessary to conceal the operations of government; otherwise no attack on an enemy could be premeditated with success. . . that it was no less imprudent to divulge our negotiations with foreign powers. . . .124 These remarks testify to the apprehension that was generated by an express legislative authorization to conccal information from the public. In light of the denial to the representative body of limitless power to conceal, how can an intention be derived to grant by implication to the executive branch power to keep "anything and everything" secret? Indeed, what might momentarily be concealed from the public had to be divulged to Congress if that partner in government was to participate in making the momentous decisions which alone were to be temporarily concealed. In the interest of completeness it is necessary to inquire whether the executive power extends beyond the power of faithful execution of the laws. There is no dissent from the early identification of the legislative power of inquiry with that of the parliamentary Grand Inquest.125 In contrast, both the framers of the state constitutions and the records of the Constitutional Convention show an intention to cut the executive off from the prerogatives of the Crown and to limit its power.126 Kramer and Marcuse invoke the Founding Father's fear of "despotic tendencies of the legislature," of legislative "tyranny," but that darkens counsel. 127 So, Madison's statement that "the legislative department is everywhere... drawing all power into its impetuous vortex..."128 merely had reference to the "danger from legislative usurpations . . . by assembling all 125 William Pitt asserted the power of a Grand Inquest without contradiction, see text accompanying note 66 supra; it was recognized that this was a congressional power by Washington and his Cabinet, see text accompanying note 191 infra, by Vice-President Calhoun, see note 81 supra, and by President Polk, see note 281 infra. See also notes 201, 203 and 226 infra, and the discussion in the House during the Jay Treaty debate, at notes 251-53 infra. 126 See text accompanying notes 142, 157-59 infra. See also notes 151 and 157 infra. Iredell explained to the North Carolina Ratification Convention that: "It was very difficult, immediately on our separation from Great Britain, to disengage ourselves entirely from ideas of government we had been used to." 4 ELLIOT, op. cit. supra note 119, at 108. But referring to the maxim that "the King can do no wrong," Iredell said that a departure from the royal prerogative was made because “we have experienced that he can do wrong. . . ." Id. at 109. The very resort to "executive power" marked a step away from English law. See note 153 infra. 127 Kramer & Marcuse 905. 128 Ibid. 68-287 O-71-6 1070 UCLA LAW REVIEW [Vol. 12: 1043 power in the same hands,"129 which he had illustrated during the Constitutional Convention by reference to several states wherein "the Executives . . . are in general little more than Cyphers; the legislature omnipotent."130 This was a plea for the strong executive fashioned by the framers, no more. 131 From this follows no intention to curtail familiar legislative inquiry into executive conduct. Madison himself stated in The Federalist No. 51 that "in republican government, the legislative authority necessarily predominates." And the "belief prevalent" at the end of the colonial period was that "the executive magistracy' was the natural enemy, the legislative assembly the natural friend of liberty. . . ."132 It has survived in Mr. Justice Brandeis' well-known reference to the deep-seated 129 THE FEDERALIST No. 47. So, too, James Wilson's remark, Kramer & Marcuse 905, that the colonists "did not oppose the British King but the Parliament . . . a corrupt multitude," scarcely expresses Wilson's preference for the executive over the legislature, for he flatly rejected the morarchical "prerogative" and conceived of executive power as confined to "executing the laws." See text accompanying note 158 infra. See also note 151 infra. Jefferson explained that he opposed Hamiltonian measures in order "to preserve the Legislature pure and independent of the Executive... not to permit the Constitution to be construed into a monarchy. . . .” CORWIN 18. When Kramer & Marcuse 905, quote Gouverneur Morris to the effect that the: "Executive magistrate should be the guardian of the people, even of the lower classes, against Legislative tyranny," and, to complete the quotation: "against the Great and the wealthy who in the course of things will necessarily compose the Legislative Body," 2 FARRAND, RECORDS 52, they could scarcely pick a poorer witness. It is of a piece with Morris' "frankly cynical contempt for 'democracy,'" for he ever feared the "domination of a riotous mob" and favored a "government in the hands of the rich and well-born," a "president elected for life, with power to appoint a Senate of life members," 7 DICTIONARY OF AMERICAN BIOGRAPHY 209, 211 (Malone ed. 1934), all for the protection of the "lower classes"! 130 2 FARRAND, RECORDS 35. 131 So, too, Jefferson's fear of a legislative despotism merely underscored that under the Virginia government, to which his words were directed: "All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government." Kramer & Marcuse 905 n.801. (Emphasis added.) The power of congressional inquiry is not at all comparable to such "concentration." 132 CORWIN 5-6. An explanation was furnished in 1791 by Justice Wilson, one of the foremost Framers: before the Revolution, the executive powers were not derived from the people but from a "foreign source" and "were directed to foreign purposes"; hence, they were "objects of aversion and distrust." But "our assemblies were chosen by ourselves. . . . Every power, which could be placed in them, was thought to be safely placed ." At the Revolution, "the same fond predilection, and the same jealous dislike, existed and prevailed. .." 1 WILSON, WORKS 398 (1804). Mr. Davie, speaking for ratification of the Constitution before the North Carolina Convention, would have preferred to confide the treaty making power to the President alone, but explained "that jealousy of executive power which has shown itself so strongly in all the American governments, would not admit this improvement." 3 FARRAND, RECORDS 348. Compare the state constitutional limitations on the executive collected by PATTERSON 82-91. See HURST, JUSTICE HOLMES 98; 2 PAGE SMITII 701, 695. 1965] WITHHOLDING INFORMATION 1071 conviction of the English and American people that "they must look to representative assemblies for protection of their liberties."'** The early state constitutions, with each of which one or more of the members of the Convention were familiar,184 not only provided for "legislative supremacy," but generally limited the executive power.185 The New York Constitution influenced the Committee on Detail more than any other; 180 it vested the "executive power" in a governor and then enumerated a set of powers, such as the power to reprieve and pardon, but lodged the veto and appointment power elsewhere.187 ... The records of the Constitutional Convention on this point, though meager, are yet illuminating.188 In a debate on the initial resolution it was determined "that a national Executive be [instituted]. to possess the executive powers of Congress. . . ."189 Roger Sherman, arguing for appointment of the executive by the legislature, said that "he considered the Executive magistracy as nothing more than an instrument for carrying the will of the Legislature into effect. . . ."140 Notwithstanding that James Wilson was "leader of the 'strong executive' party" and favored an executive "independent of the legislature," he too declared that he "did not consider the Prerogative of the British Monarch as a proper guide in defining the Executive powers. . . . The only powers he conceived strictly Executive were those of executing the laws and appointing officers. . . ." 142 183 Myers v. United States, 272 U.S. 52, 294-95 (1926) (dissenting opinion) (Holmes, J., concurring). More recently Mr. Justice Jackson expressed reluctance "further to aggrandize the presidential office, already so potent .. at the expense of Congress." Youngstown Sheet & Tube Co. v. United States, 343 U.S. 579, 654 (1952) (concurring opinion). 184 FARRAND, FRAMING 128-29; Patterson 82-83. Farrand remarks that members of the Federal convention "were dependent upon their experience under the State constitutions" and upon "what they themselves had seen and done." FARRAND, FRAMING 203-04. For a collection and analysis of state constitutional provisions, see PATTERSON 83-89. 135 PATTERSON 89, 83-84. If "Legislative Supremacy" had come into disrepute, CORWIN, COURT OVER CONSTITUTION 24 (1938), executive discretion to withhold information was significantly missing from the numerous checks on Congress which were enumerated in the several Conventions. See, e.g., 2 ELLIOT'S DEBATES 166-69 (1941). 136 FARRAND, FRAMING 129; Patterson 85. 187 Ibid. 138 Having examined the records of the Constitutional Convention on the issue whether the express enumeration excluded unenumerated executive powers, the writer concurs in the analysis of PATTERSON 92-97. The matter is hereinafter discussed. 139 1 FARRAND, Records 64. 140 Id. at 65. 141 CORWIN 11. 142 1 FARRAND, RECORDS 65-66. See also Iredell's remarks to the North Carolina Ratification Convention, note 126 supra. 1072 UCLA LAW REVIEW [Vol. 12: 1043 No one took exception to these remarks; instead the debate centered on whether the executive should be single or multiple. Madison thereupon emphasized that preliminarily it was essential "to fix the extent of the Executive authority ... as certain powers were in their nature Executive, and must be given to that department . . . ."48 Madison therefore did not consider that the mere creation of an executive gave rise to inherent powers but rather that they "must be given" to the executive. Accordingly he moved, being seconded by Wilson, the insertion after the words "that a national Executive ought to be instituted" of the phrase "with power to carry into effect the national laws, to appoint to offices... and to execute such other powers as may from time to time be delegated by national Legislature." Upon Pinckney's motion, this was amended by striking the words "to execute such other powers as may... be delegated" on the ground that "they were unnecesary, the object of them being included in the 'power to carry into effect the national laws.'"145 Subsequently this was amended to read "with power to carry into execution the national laws" and a power of appointment was added.146 So it remained, with the addition of a veto power,147 and so it appeared in an enumeration by the Committee on Detail of "his powers," which then included command of the land and naval forces.148 The phrase "the Executive Power of the United States shall be vested in a single person," the President, first appears in a James Wilson draft, accompanied by an enumeration of powers to grant reprieves and pardons, to serve as Commander in Chief, and with a Rutledge addition that "it shall be his duty to provide for the due and faithful execution of the Laws. . . ."149 No explanation of the change from "power to carry into effect the national laws" to "Executive Power" appears; and it can hardly be assumed that James Wilson, who was chairman of the Committee on Detail,' and to whom the only conceivable executive powers were those of appointment and of "executing the laws," should have intended by 150 140 Id. at 163, 171. The report of the Committee on Detail changed the "faithful execution" phrase to "he shall take care that the laws of the United States be duly and faithfully executed." Id. at 185. It was referred in this form to the Committee on Style, id. at 572, 574, and that Committee shifted to: "The executive power shall be vested in a president of the United States of America... he shall take care that the laws be faithfully executed." Id. at 597, 600. 150 CORWIN 11. 1965] WITHHOLDING INFORMATION 1073 the change in phraseology to make a radical shift to unlimited executive powers. So to read "executive power" is to render meaningless the prior step-by-step expansion of carefully enumerated powers which was carried over into the final draft, and to overlook the prevalent fear of executive usurpation.151 Some explanation for such a reading is in order. It is not furnished by the fact that the Convention finally made the executive independent of the legislature by substituting election by electors for appointment by the legislature.152 Just as Madison separated the extent of the executive powers from the question whether the executive should be single or plural, so did James Wilson impliedly separate the extent of the executive's powers from his right to exercise those powers independently. A "strong executive," Wilson could accept, but with powers limited to the execution of the laws.153 From the outset the executive powers were carefully enumerated and gradually expanded, and the final phrase was merely the formula for settlement of the controversy whether the executive power should be lodged in more than one person, first expressed in the phrase "the Executive Power ... shall be vested in a single person," and then "the Executive Power shall be vested in a President. . . 27154 The prevailing judicial view is expressed by Chief Justice Taft's statement in Myers v. United States that "the vesting of the executive power in the President was essentially a grant of the 151 IN THE FEDERALIST No. 48, at 333 (Cooke ed. 1961) (Madison) Madison said that the "founders of our republics," i.e., the state constitution draftmen, "seem never for a moment to have turned their eyes from the danger to liberty from the over grown and all-grasping prerogative of an hereditary magistrate, supported and fortified by an hereditary branch of the legislative authority. They seem never to have recollected the danger from legislative usurpations; which by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations." This was a plea for a strong executive to balance an over strong legislature, but it was addressed to a lively fcar of executive tyranny. See text accompanying note 132 supra. 152 FARRAND, RECORDS 169-70. 153 See text accompanying notes 141-42 supra. In the Virginia Ratification Convention, Governor Randolph said: "What are his powers? To see the laws executed. Every executive in America has that power." 3 ELLIOT'S DEBATES 201 (1941). Charles Pinckney, a delegate to the Federal Convention, said in the South Carolina Ratification Convention that "we have . . . endeavored to infuse into this department that degree of vigor which will enable the President to execute the laws with energy and dispatch." 4 id. at 329. In the North Carolina Ratification Convention, Iredell said, "most of the Governors of the different states have powers similar to those of the President." 4 id. at 107. The governors' powers were quite limited. See text accompanying note 135 supra. Cf. 2 ELLIOT'S DEBATES 514 (1941), where Wilson twitted the opposition in the Pennsylvania Convention for stressing "the deficiency of powers in the President." 154 "The records of the Constitutional Convention make it clear that the purposes of this clause were simply to settle the question whether the executive branch should be plural or single and to give the executive a title." Corwin, The Steel Seizure Case 53. |