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power to execute the laws."'155 But he went on to suggest a broader interpretation on several grounds, first reaching for analogy to powers of the Crown. Faced with the fact that in the 1776-1787 period “power to make appointments and removals had sometimes been lodged in the legislature or in the courts,” he said that “such a disposition of it was really vesting part of the executive power in another branch of the Government,” reasoning that:

In the British system, the Crown, which was the executive, had the
power of appointment and removal of executive officers, and it was
natural, therefore, for those who framed our Constitution to regard
the words "executive power” as including both.156

Nothing better illustrates the danger of attributing to our forebears views which may seem “natural” enough to us but which history shows were in fact alien to them. In the 1776-1787 constitutions of the various states, “ 'Executive power' . .. was left to legislative definition and was cut off entirely from the resources of the common law and of English constitutional usage."157 James Wilson, leader of the "strong executive" contingent in the Convention, affirmed that "he did not consider the Prerogative of the British Monarch a proper guide in defining the Executive powers . . ."168 and no voice was raised in opposition. Later, Chief Justice Taney, remarking on the "wide difference" between the Presidential and Crown powers, declared that "it would be altogether unsafe to reason from any supposed resemblance between them, ... where the rights and powers of the executive ... are brought into question."159

Second, Chief Justice Taft stressed the significant difference between the grant of legislative power under Article I to Congress, which is limited to powers therein enumerated, and the more general grant of the executive power to the President under Article

155 272 U.S. 52, 117 (1926).
156 Id. at 118.
157 CORWIN 6.

The draftsmen of the federal Constitution did not of course jettison their state convention experience colored by limited executive power. To the contrary, "the state constitutions were continually drawn upon," and The Framers, “relied almost entirely upon what they themselves had seen and done ... under the state constitutions and articles of confederation." FARRAND, FRAMING 128, 204.

Executive "as a noun was not then a word of art in English law-above all it was not so in reference to the Crown. It had become a word of art in American law through its employment in various state constitutions adopted from 1776 onward. . . . It reflected ... the revolutionary response to the situation precipitated by the repudiation of the royal prerogative." Goebel, E.r Parte Clio, 54 COLUM. L. Rev. 450, 474 (1954) (Review of CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES (1953)).

158 1 FARRAND, RECORDS 65. See also Iredell's remark quoted, supra note 126. 159 Fleming v. Page, 9 How. (50 U.S.) 602, 618 (1850).

1965)

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II. . . ."169 Viewed alone, this "difference” might suggest an intention to create an unlimited executive, in contrast to a limited legislative, power. But this does violence to the plainly expressed preconstitutional preference for a strong legislature and a weak executive, and to the above-noticed origin of the “Executive Power” phrase. Of course, the Convention moved to a "strong executive,” but to one of cnumcrated functions, and one further limited by the legislature in important particulars: treaties and certain appointments required Senate consent, and Congress was empowered to override the President's veto, thus being made the final arbiter of what laws are necessary. The "difference” in terminology between the grants of the legislative and the executive powers provides little support for the argument regarding an unlimited executive power.

Finally, Chief Justice Taft dismissed the specific enumeration of powers in Article II, saying that "the executive power was given in general terms, strengthened by specific cerms where emphasis was regarded as appropriate. . . ."161 This is far removed from what "enumeration" meant to those who adopted the Constitution. In the Virginia Ratificatico Convention, Governor Randolph, defending the Constitution, said that the powers of government "are enumerated. Is it not, then, fairly deductible, that it has no power but what is expressly given it?-for if its powers were to be general, an enumeration would be needless."182 Mere "emphasis” fails to explain the cautious, step-by-step addition of one enumerated power and then another by the framers. If, said Mr. Justice Jackson, the executive power clause granted a plenary executive power, “it is difficult to see why the forefathers bothered to add several specific terms, including some trilling ones." He pointed to the express presidential authorization to "require the Opinion, in writing” of each department head, and justly concluded that “matters such as these would seem to be inherent in the Executive if anything is."143

160 Myers v. United States, 272 U.S. 52, 128 (1926).
161 Id. at 118.

162 3 ELLIOT'S DEBATES 464 (1941). Similarly, Iredell told the North Carolina Convention with reference to Congress that: “It is necessary to particularize the powers intended to be given, in the Constitution, as having no existence before; but, after having enumerated what we give up. ..." 4 id. at 179. (Emphasis added.)

163 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 640-41 (1952) (Jackson, J., concurring). In his concurring opinion, Mr. Justice Douglas states that: “Article II which vests the 'executive power' in the President defines the power with particularity." Id. at 632. Justice Story said that "the powers with which it (the executive department) is intrusted" "are enumerated in the second and third sections" of Article II. 2 STORY 314. In Ex parte Merryman, 17 Fed. Cas. 144, 149 (No. 9437) (C. C. Md. 1861), Taney C. J., points out how "carefully” the framers "withheld from it (the executive branch) many of the powers belonging to the executive branch of the English government ... and conferred (and that in clear and specific terms] those powers only which were deemed essential. ..."

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It is incongruous to attribute to a generation so in dread of executive tyranny an intention to give a newly created executive a blank check at the very moment when it was carefully enumerating the powers that were being granted, down to the veriest trifle.164 Justly does Mr. Justice Jackson reject “the view that this (Executive Power] clause is a grant in bulk of all conceivable power but regard it as an allocation to the presidential office of the generic powers thereafter stated."105 Not Taft's views but those of Mr. Justice Holmes have carried the day: “The duty of the President to see that the laws be executed is a duty that does not go beyond the laws. . . ."168 This was also the view of Mr. Justice Brandeis; 107 it has been adopted by Mr. Justice Frankfurter, 168 by Justices Black and Douglas,169 and it is solidly anchored in history.

In the field of foreign relations a broader view may seem to be indicated by United States v. Curtiss-Iright Export Corp.'iu where it "was intimated that the President might act in external affairs without congressional authority. ..."171 Mr. Justice Jackson has pointed out that "much of the Court's opinion is dictum” and that the case "involved, not the question of the President's power to act without congressional authorization, but the question of his right to act under and in accord with an Act of Congress."172 By what logic, it has been asked, does the President have “inherent power in foreign affairs but not in domestic?"173 Perhaps a partial answer may lie in the need, given a cluster of constitutional riddles, 174 of filling a power vacuum. But time enough to formulate an answer in lieu of a dictum when that need becomes real.

In the constant stress on presidential powers, a duty tucked away in their midst has been insufficiently noticed: the duty "from time to time (to] give to the Congress information of the State of 1965)

104 That the requirement of opinions was not then regarded as a "trifle” may be gathered from Iredell's elaborate explanation to the North Carolina convention why the power was granted. 4 Ellior's DEBATES 108-10 (1941). His explanation of the grant of the pardoning power was even more extensive. Id. at 110-14. Time and again during the various convention debates the smoldering distrust of centralized power flared up.

165 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 641 (1952).
160 Myers v. United States, 272 U.S. 52, 177 (1928) (dissenting opinion).
107 Id, at 192.
198 In Sawyer, 343 U.S. at 610 (concurring opinion).

109 Id. at 587. Mr. Justice Douglas said that: “The power to execute the laws starts and ends with the law Congress has enacted. Id. it 633 (concurring).

170 299 U.S. 304 (1936).
171 343 U.S. at 635-36 n.2 (Jackson, J., concurring).
172 Ibid.
173 PATTERSON 94.
174 See CORWIN 4-5.

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the Union.” It has too mechanically been associated with annual presidential messages, but Justice Story properly read it morc broadly. The President, hc stated,

must possess morc cxtcnsivc sourccs of information, as well in regard to domestic as forcign affairs, than can belong to the Congress. The truc workings of thc laws . . . arc morc rcadily sccn, and more constantly under the vicw of thc cxccutive. . . . Thcrc is grcat wisdom, thcrcforc ... in rcquiring the President to lay bcforc Congress all

facts and information which may assist thcir deliberations. ...176 This duty to supply "all facts and information” which the President has and the Congress has not and "which may assist their deliberations” is the obverse of the then familiar power of the Grand Inquest to inquirc.176 A good reason for a restrictive reading of the phrasc has yet to be proffcrcd, and it is contrary to common sense. It can no longer be doubled that Congress was cmpowered to investigate the conduct of the Exccutive Departments,177 and it would bc a self-dcrcating construction that would simultancously endow the executive with "uncontrolled discretion" to withhold information needed for that purpose.178 It is more reasonable to read the "state of the nation" phrase as imposing a duty to furnish information which the Grand Inquest was historically authorized to require.

It does not follow that the framers intended that “Congress would necessarily prevail in all cases" of a boundary dispute between the President and Congress. 170 But no more did the founders intend that the President should “in all cases" prevail, as would happen if, as Kramer and Marcuse assume, the President may finally determine what information may be withheld from Congress.180 Given conflicting claims of power-spheres of power which intersect, and the necessity forseen by Madison of protecting each department

176 2 STORY 367. Scnator Edmunds said in 1886 that: "The 'state of the union' is made up of every drop in the bucket of the execution of every law and the performance of the dutics of every office under the law. ..." 17 Cong. Rec. 2215 (1886).

176 See note 125 supra.

177 Congress has jurisdiction to inquire into "the administration of the Department of Justice (and of all executive instrumentalitics)—whether its functions were being properly discharged or were being neglected or misdirected, and particularly whether the Altorney General and his assistants were performing or neglecting their duties ...." McGrain v. Daugherty, 273 U.S. 135, 177 (1927). (Emphasis added.) See also Watkins v. United States, 354 U.S. 178, 187 (1957).

178 “The power being given, it is the interest of the nation to facilitate its execution. It can never be their interest, and cannot be presumed to be their intention, to clog and embarrass its cxccution, by withholding the most appropriate means." McCulloch v. Maryland, 4 Whcat. (17 U.S.) 316, 408 (1819).

170 Kramer & Marcuse 906, properly reject such a contention. 180 Id. at 910 2.810. See tat accompanying notes 38-42 supra.

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"against the invasion of the others”!RI—the crucial question is: , who shall draw the boundaries? Madison's answer in The Federalist is that "neither” of the departments “can pretend to an exclusive or superior right of settling the boundaries between their respective powers."182 Inescapably the task must fall to the courts; as Mr. Justice Frankfurter said in the Stcel Seizure case, “the judiciary may, as this case proves, have to intervene in determining where authority lies as between the democratic forces in our scheme of government,"'183 a thesis on which I shall hereafter dwell.

III. HISTORY MUSTERED BY ATTORNEY GENERAL ROGERS,

PRESIDENTIAL “REFUSALS" OF INFORMATION

The sporadic historical incidents paraded by the Attorney General in support of the executive privilege to withhold information from Congress have been so thoroughly deflated by J. R. Wiggins154 that there would be no occasion further to notice them but for continued reliance upon them to illustrate the “proliferation of justification for executive secrecy,” without reference, it may be added, to the Wiggins analysis.185 In retracing Wiggins' studies I have stumbled on some additional historical materials which need to be fitted into place. It would be tedious and unrewarding to accompany the Attorney General on all of his historical peregrinations, so the discussion will be confined to the first fifty years, both because they are more nearly contemporaneous with the forging of the Constitution and therefore have much greater weight than subsequent aberrations, 186 and because if examples culled from this period by the Attorney General do not stand up, we are entitled to doubt the efficacy of the rest.187

181 THE FEDirilist No. 48 (Madison). 182 Id. No. 49. See noles 711, 740 infra. 183 343 U.S. at 597 (Frankfurter, J., concurring). 184 Wiggins. 183 Younger 771, 756-63. Cf. Kramer & Marcuse 900.

186 Indeed, the Supreme Court very early declared with respect to a practice then only a few years old, but originating from the foundation of our government, "to this objection, which is of recent date, it is sufficient to observe, that practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction. It is a contemporary interpretation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken. ..." Stuart v. Laird, 1 Cranch (5 U.S.) 299, 309 (1803). (Emphasis added.) How much more potent when that construction is lodged in a statute, the Act of Sept., 1789, approved by President Washington. See text accompanying note 79 supra.

187 Mr. Justice Jackson said of a row of citations that "if the first decision cited does not support it (the proposition), I conclude ihat the lawyer has a blunderbuss mind and rely on him no further. Jackson, Advocacy Before the Suprewie Court: Suggestions for Effective Case Presentations, 37 A.B.A.J. 801, 804 (1961).

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