Law studies at the Universities of Freiburg and Hamburg. Legal State Examination, Hamburg, 1961. Graduate law studies in constitutional law and American political theory at Yale Law School. LL.M. Yale, 1962. Dr. iur. utr. Freiburg University, 1961. Assistant Professor of Political Science, University of California at Berkeley, 1964-66. Associate Professor of Law and Political Science, University of Chicago, 1966–69. Professor since June 1969. Visiting Professor of Law, Catholic University of Louvain, Belgium, 1970. German National Honors Fellowship, 1959-64. Graduate Fellowship, Yale University 1961-1962. Rockefeller Fellow, Institute of Political Science, University of Turin, Italy, Spring 1963. Research Grant, Social Science Research Council, 1971. Publications.-Legal Realism and American Political Theory, 206 pages (1967, in German). Jones v. Mayer: Clio, Bemused and Confused Muse, The Supreme Court Review 1968, pages 89-132. Comparative Public Law, 13 International Encyclopedia of the Social Sciences, pages 183-188 (1968) (with Stefan Riesenfeld). Williams v. Rhodes and Public Financing of Political Parties under the American and German Constitutions, The Supreme Court Review 1969, pages 271-302. Review of Charles L. Black, Jr., Structure and Relationship in Constitutional Law, 37. The University of Chicago Law Review, pages 196-202 (1969). The Right "To Vote Effectively," 20 Jahrbuch des öffentlichen Rechts der Gegenwart, pages 375-384 (1971). Lay Judges in the German Criminal Courts, 1. The Journal of Legal Studies 135-91 (1972) (with Hans Zeisel). Review of Charles Fairman, History of the Supreme Court of the United States: Reconstruction and Reunion, 1864-88, Part One, 1973 Columbia Law Review (forthcoming). STATEMENT OF DR. GERHARD CASPER, PROFESSOR OF LAW AND POLITICAL SCIENCE AT THE UNIVERSITY OF CHICAGO* Dr. CASPER. Thank you, Mr. Chairman. I am grateful to the committee for providing me with this opportunity to testify on the very important subject which is the concern of the committee. I shall discuss the emergency powers of the executive first by analyzing the constitutional framework, and then by raising some even larger historical and political questions. While the constitutions of other democracies, for instance, France and Germany, include more or less elaborate rules for institutional adjustments to be made during emergencies like, for instance, transfer of legislative powers to the executive or a parliamentary committee, the United States Constitution does not provide for suspending the basic and ordinary distribution and separation of powers in times of emergency. This is not to say that the Constitution is void of any rules for extraordinary situations, but rather these powers are narrow in scope. Professor Philip B. Kurland of the University of Chicago, who was also invited by this Special Committee, but is prevented from appearing before it because of prior commitments to his task as consultant to the Senate Judiciary Subcommittee on Separation of Powers, has seen this statement and concurs in its position. In view of the attitudes prevailing at the Constitutional Convention, it should come as no surprise that no drastic structural changes for coping with national emergencies were contemplated. To confer upon the President extraordinary constitutional authority to deal independently with emergencies, would have only further heightened the widespread fear that the Presidency might be turned into a temporary monarchy or might fall into the hands of a Cataline or Cromwell, and would have jeopardized the adoption of the Constition. As Franklin said when speaking against an absolute negative for the executive: "The first man put at the helm will be a good one. Nobody knows what sort may come afterwards. The executive will always be increasing here, till it ends in a monarchy." Corwin's assertion that "the Presidency was designed in great measure to reproduce the monarchy of George III with the corruption left out," can claim to be no more than a clever response to Sir Henry Maine's dictum, that "the American Constitution is the British Constitution with the monarchy left out." 2 DESIGNED TO RESOLVE DEFICIENCIES As concerns the most dangerous of all emergencies: war, the Constitutional Convention gave the executive the power to repel sudden attacks but left declarations of war to Congress. The problem with the war powers of the Confederation, after all, had not been the fact that they were vested in the Continental Congress, but that they were insufficient vis-a-vis the States. In addition to the quota system of financial contributions, the Confederation depended on quota requisitions of manpower. These were the deficiencies the new Constitution was primarily designed to resolve. Otherwise, we do well to remember that the War of Independence was carried to its successful end by the Congress itself." On the same day on which the Convention discussed the war power, August 16, 1787, it also dealt with the internal emergency of rebellions within a State. Governor Morris, otherwise a friend of a strong executive, argued against hampering the general government by not permitting it to intervene without application by a State legislature: "We are acting a very strange part. We first form a strong man to protect us, and at the same time wish to tie his hands behind him. The legislature may surely be trusted with such a power to preserve the public tranquility." 5 In context, "strong man" meant the general government and "legislature" the national legislature, that is, the Congress. Given the fact that the United States Constitution has been interpreted by almost all analysts, American and foreign, as an extremely carefully engineered document, characterized by a sustained sombreness of mood, anticipating, and I quote "little good, but mainly evil: war, universal corruption, public insolence and insubordination," the 1 [Madison, Notes of Debates in the Federal Convention of 1787, 66 (Norton Library 1969)]. 2 [Corwin, The President: Office and Powers 14, 4th ed. (1957)]. Madison, supra at 476]. [On the prevailing views about the weaknesses of the Confederation, cf. Wood, The Creation of the American Republic 1776-1787, 471ff (1969)]. Madison, supra at 475]. [Jacobson, Political Science and Political Education, 57 The American Political Science Review 561, 562 (1963)]. refusal to arrange for institutional changes during emergencies expresses the confidence of the Founding Fathers that the ordinary institutions were so designed as to be capable of coping with extraordinary events. After all, their system of government, as The Federalist amply demonstrates, was based on the "scientific" insight that "power controlled or abridged is almost always the rival and enemy of that power by which it is controlled or abridged." Checks were heaped upon checks so that the love for power could be harnessed. In the decade following the War of Independence, distrust of power seems to have been the most widespread sentiment among Americans. 1 What are those constitutional provisions which may be considered to have a bearing on the question of emergency powers? Article I, section 8 gives the Congress the power: To declare war...; To raise and support Armies, but no Appropriation of Money to that use shall be for a longer term than two years; To provide and maintain a Navy; To make rules for the Government and regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repeal Invasions; To provide for organizing, arming, and disciplining the Militia... Section 9 of the same Article prohibits suspension of the privilege of the writ of habeas corpus, "unless when in Case of Rebellion or Invasion the public Safety may require it." Senator CHURCH. I would like to ask at that point, because it is a matter of personal interest to me, when President Lincoln suspended the writ of habeas corpus at the start of the Civil War, he did it pursuant to this provision of the Constitution. It was, in fact, a constitutional act, is that correct? Dr. CASPER. Well, I think the issue, Senator, was whether the President could suspend the writ or whether the Congress had to suspend the writ. Senator CHURCH. I see. SUSPENSION OF HABEAS CORPUS Dr. CASPER. Section 9 is a very carefully drafted provision. The privilege shall not be suspended unless when in case of rebellion and/ or invasion the public safety may require it. The provision does not say "unless in case of rebellion or invasion." It adds the further caution unless in case of rebellion or invasion the public safety may require it. President Lincoln believed he had authority to suspend the writ on his own. I have always been very troubled by that because the only way we can read this provision is to read it in context, and in context it appears in Article I of the Constitution. Senator CHURCH. Which deals with the powers of Congress. Dr. CASPER. As to the Civil War suspension, Congress was careful to protect its own position by later on authorizing the suspension without addressing itself later to the question whether the original suspension by the President was unconstitutional. I return to Article II of the Constitution. Unless the grant of the executive power per se is seen as giving the President emergency powers, a queer interpretation in light of the Convention's detailed delegation of powers and especially in light of the "necessary and proper clause.” Article II which deals with the Presidency has only two relevant provisions, relevant to emergencies, that is Section 2 makes the President "Commander-in-Chief of the Army and Navy of the United States and of the Militia of the Several States, when called into the actual Service of the United States." Section 3 empowers the President to convene both houses or either of them "on extraordinary occasions." Finally, Section 4 of Article IV, the article which regulates certain aspects of federalism, provides: The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature or of the Executive (when the Legislature cannot be convened) against domestic Violence. Beyond these specific provisions Congress may, of course, in the exercise of its power to make all necessary and proper laws for executing powers vested in the Government of the United States, authorize the President to take certain measures in specified emergencies. Since the Constitution nowhere gives the President either the power to declare a national emergency or to legislate independently of Congress, such declarations must generally be based on Congressional delegation, subject to the restrictions which limit delegation of powers. The only exception to this rule involves the President's power to repel sudden attacks on the United States (and its armed forces stationed abroad) which surely includes the power to take emergency action. But since the ultimate war power is in the hands of the Congress, the scope of the President's power in this area is uncertain: it falls into what Justice Jackson has called "a zone of twilight." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (Jackson concurring) (1952).1 By the way. I respect fully disagree with Dean Fisher's testimony earlier today. It is quite true we have very few cases. We have indeed only one major case, the Steel Seizure case, which may be "wide". It is also "deep", at least some of the opinions are, in particular Justice Jackson's. The fact that we have only this one major case should not overly concern us. Senator CHURCH. The Jackson opinion really has become the dominant one, has it not? Dr. CASPER. Yes, I am almost about to learn it by heart. It would make my life much easier. [Laughter.] Not as a matter of constitutional law but as a factual matter, public confusion about the borders of this "zone of twilight" has been con 1 See Appendix, p. 349. siderably increased due to the inertia of Congress with respect to the Korean and Vietnam enterprises. TREATY-MAKING POWER LIMITED What is reasonably clear, however, is that the President's portion of the so-called "foreign affairs power" does not give him any special emergency power outside the framework of Congressional delegation. It is important to remember that foreign affairs is not an exclusive domain of the President. The Senate participates, as you know, in the treaty-making power. Treaties become the law of the land when concurred in by two-thirds of the Senate, which means, Mr. Chairman, that the treaty-making power of the President is at the disposal of one-third of the Senate. We sometimes forget that fact. The treatymaking power is very limited indeed; one-third plus one Senator can veto any treaty. More importantly, power over foreign affairs does not give the President added power over internal, including economic affairs. [343 U.S. 579, 644]. United States v. Curtiss Wright is not a case to the contrary, since the Court limited it to its facts which involved "a situation entirely external to the United States." 1 Senator PEARSON. May I interrupt you, is that point very important assuming the current trend to really execute all very serious international agreements by virtue of the executive agreement rather than treaties? Dr. CASPER. I think the point remains important, Senator Pearson. But you are most certainly right, as far as the facts are concerned. The treaty provision has been evaded, is being evaded all the time. That, of course, raises some very large questions, but I do think it is very well worth remembering the treaty provision because it reminds us of the balance of powers scheme as originally designed. It is for that purpose that I emphasize the fact that a minority of the Senate can block a treaty. I realize that executive agreements are a very important-a gray area, very troublesome. Senator PEARSON. As a matter of fact, I think of only one, the treaty that implemented a part of the SALT agreements is probably the only really serious international agreement in treaty form that I can recall at this instance. Dr. CASPER. That you have acted on recently. Senator PEARSON. Well, in the last decade. Dr. CASPER. I thought there would be a few more. Senator CHURCH. You can be sure if the subject matter has to do with Senator PEARSON. Test ban. Senator CHURCH. Yes, test ban. Mr. DINE. It was a decade ago. And there was the Okinawa Reversion Treaty in 1970. Senator CHURCH. But every day we vote on treaties that have to do with totally trivial matters. In fact, the more trivial the matter the more inclined the executive is to submit it to the Senate for ratification as a treaty, and the more important the matter the less inclined the executive is, which is just the reversal of what has always been 1 [United States v. Curtis-Wright Export Corp., 299 U.S. 304, 315 (1936)]. |