Presidential power and national security.

Sofaer, Abraham D.

This issue of Presidential Studies Quarterly examines the powers of the president of the United States to deal with issues of national security. The attacks on the United States of September 11, 2001 led to claims and actions concerning presidential power that reignited this enduring debate. Participants in this symposium have been asked to answer the following questions:

1. Did the Framers adopt the British war model theory (Blackstone, Locke)?

2. Does the theory of executive prerogative operate without limits from the legislative and judicial branches?

3. What role did the Framers anticipate for the courts in matters of war and national security?

4. What role did the Framers anticipate for Congress in matters of war and national security?

5. What is the scope of the president's power as commander in chief? That title provides unity of command and also assures civilian supremacy over the military. What else? What are the limits, if any?

These are good questions. But abstract questions about the powers allocated by the Constitution to the president, or to the other branches of government, are by their nature inadequate vehicles for understanding the meaning of the powers at issue. Abstract questions lead to abstract answers, and to the unproductive tradition of cutting and pasting parts of the Constitution and quotes from other sources while ignoring others, to prove one position regarding presidential power or another. As Justice Robert H. Jackson wrote in his famous concurring opinion in the Steel Seizure case (Youngstown): "A century and a half of partisan debate and scholarly speculation [concerning the Constitution's separation of powers] yields no net result but only supplies more or less apt quotations from respected resources on each side of any question." (1) Attempts to explain executive power without at the same time seeking to understand it in the context of legislative and judicial power is an inherently flawed method for understanding how the U.S. government works and was intended to work.

The Framers did not adopt any specific model of executive power in shaping the presidency. They created an office with many though not all the powers considered "executive" in the Blackstone model, including the powers to interpret and execute laws and treaties, handle the country's international relations, and act as commander in chief. They gave other "executive" powers to Congress, however, including the powers to declare war, issue letters of marque and reprisal, confirm executive appointments, and suspend the writ of habeas corpus. At the same time, the Framers gave the president the legislative power to veto laws, and they gave powers to both the Congress and (less explicitly) to the courts which enable those branches as well to approve, disapprove, or check the exercise of executive authority over national security issues.

The resulting overlap of authority in the Constitution stems from the Framers' acceptance of the British view that liberty can only be effectively preserved by having not only separate branches (as recommended by Montesquieu, Locke, and Blackstone, among others) but also by mixing in each branch aspects of all the forms of power--legislative, executive, and judicial (Bailyn 1968, 20-23). What this meant in terms of British constitutional history is that the king could be criticized or impeached for conduct that fell within the Royal Prerogative, because Parliament had its own, independent powers over the same subjects on which the king had power to act. On the other hand, it also meant that the king could act unilaterally in areas of his authority, despite the fact that Parliament had the power to prevent his action but had flailed to do so.

The Framers explicitly relied on the mixing of powers in the Constitution as a substitute for what James Madison in Federalist nos. 48 and 51 cited as the inadequate "parchment barriers" of constitutional prohibitions or enumerations. As opposed to "exterior" means, an effective or "interior structure" could be created in several ways, he noted, but the "great security" was to give each branch the constitutional means and the personal motives to resist encroachments on its functions by the others. It is in making this point--the need for overlapping authority to enhance the capacity in each branch to resist the others--that Madison wrote: "Ambition must be made to counteract ambition. The interests of the man must be connected to the rights of the place." The Framers deliberately used conflicting grants of authority as a supplement to their use of prohibitions and limitations in the Constitution in order to create separate branches that would be capable of defending their respective roles (Sofaer 1976, 41-43).

The system that resulted cannot effectively be described through abstract pronouncements about the powers of particular branches over particular functions. The powers at issue are properly understood as they relate to each other, as part of a system of deliberately mixed authorities.

The principal advantage in understanding executive power within its intended constitutional context is that it undermines the extravagant claims that abstract definitions of the powers of any particular branch facilitate. Claims that the Framers intended to create a "unitary" executive underlie the recent wave of assertions that the president has all the inherent and exclusive powers he and his lawyers consider necessary to win the War on Terror. These claims have often been baseless. But the practice of advancing claims of inherent and "exclusive" executive powers should be no surprise given the durability of equally baseless arguments that favor legislative power. Among these is the assertion that the president can only engage in military actions with the prior approval of Congress expressed in the particular form of a declaration of war or in the specific form required by the War Powers Resolution. The situations are highly analogous. Both sets of claims are based on abstract definitions of powers assigned to one branch or the other. Both disregard the mixed nature of the constitutional system. Both ignore authoritative precedents established and repeatedly reaffirmed over two hundred years. Both would unravel the Framers' scheme to prevent absolute control by any one branch over the others. Thankfully, neither has been taken seriously enough to pose a threat to the constitutional system.

The mixed system of government intended by the Framers is instructively reflected in the handling of a national security crisis during the earliest times of our constitutional government, when President George Washington declared and attempted to enforce neutrality in 1793. Some 160 years later, Justice Jackson explained how this scheme is best applied in evaluating the exercise of executive authority. These precedents explain how the Constitution assigns all three branches powers that can lawfully be exercised in a manner that affects the exercise by the other branches of all their assigned powers, even exclusive ones.

George Washington's Proclamation

The proclamation issued by President Washington in 1793, commonly known as the "neutrality" proclamation, demonstrated that overlapping powers were assigned by the Constitution to all the branches that bear upon war-related matters. It is rich in issues that remain relevant, and its participants were among the principal Framers of the Constitution. (2)

President Washington learned by April 12, 1793 that France had declared war on England and other states. He left Mt. Vernon immediately for Philadelphia, then the nation's capital, to deal with the crisis this situation created. The United States had treaties with France that could be construed to require actions that would give England grounds for declaring war. The Treaty of Amity and Commerce provided for the reciprocal use by the parties of each other's ports to carry in prizes, and each party was to deny this privilege to an enemy of the other. In addition, the parties agreed to disallow the use by an enemy of either party of its ports for fitting out privateers, selling prizes, or routine purchase of food. Many Americans had already begun to help France by getting their vessels designated as French privateers or by preparing French vessels for naval action.

The United States had several options, including siding with France or England, remaining neutral, or doing nothing. The president wanted to keep the United States out of the war. When he arrived in Philadelphia, he sent a list of questions to his cabinet, including whether a proclamation of neutrality should issue, the meaning and applicability of the French-American treaties, and whether to call Congress back into special session. At the same time, he instructed Secretary of State Thomas Jefferson and Secretary of the Treasury Alexander Hamilton to prepare measures to keep American citizens from embroiling the United States with either France or England.

Jefferson urged the president not to declare "neutrality," as such an act could be considered legislation and therefore in violation of the lawmaking power exclusively assigned to Congress. At a cabinet meeting on April 19, the president decided with the unanimous support of his cabinet to issue a proclamation establishing neutrality as national policy, but without using the word "neutrality" in it. This nuanced action reflected the fact that the word "neutrality" had specific meaning in international law, and therefore that its inclusion would have more clearly resembled lawmaking. The cabinet also voted unanimously against calling Congress back early; Jefferson concurred despite having earlier written to James Madison, then in the House of Representatives, that he supposed "Congress would be called, because it [complying with prohibitions against supplying the French] is a justifiable cause of war & as the Executive cannot ... decide the question of war on the affirmative side, neither ought it to do so on the negative side, by preventing the competent body from deliberating on the question" (Ford 1895, 6: 192). All members of the cabinet supported the president's exercise of discretion in deciding not to call Congress into special session, despite the fact that Congress could exercise its assigned powers only after it returned.

The president issued "A Proclamation" on April 22, 1793. It did not use the word "neutrality," but it declared that it was the "duty and interest" of the United States to "pursue a conduct friendly and impartial toward the belligerent Powers." In addition, the proclamation warned Americans to refrain from conduct that violated the national policy that had been declared and specified two remedial measures. First, those who rendered themselves "liable to punishment under the law of nations" for violating duties associated with U.S. policy "will not receive the protection of the United States, against such punishment or forfeiture." This remedy went unchallenged as being within the president's power to implement. The proclamation also stated that the president had authorized criminal prosecutions against those who violated "the laws of nations": "I have given instructions to those officers to whom it belongs, to cause prosecutions to be instituted against all persons, who shall, within the cognizance of the Courts of the United States, violate the laws of nations, with respect to the powers at war, or any of them" (Fitzpatrick 1939, 32: 430-31). This remedy rested on the claimed power to prosecute individuals in the federal courts for crimes not created by legislation.

The president possessed the exclusive power to receive ambassadors and Hamilton proposed that France's new ambassador, Edmund Charles Genet, be received with a warning that the U.S.-French treaties might be temporarily or provisionally suspended, in order to avoid suggesting to England that the United States regarded France as an ally. Jefferson urged, however, that receiving Genet only meant that his government was recognized and that the treaties could be interpreted in a manner consistent with neutrality. To withhold compliance with the treaties without just cause or compensation, he argued, would "give to France a cause of war, and so become associated in it on the other side." Washington accepted Jefferson's position, ordering that neither England nor France was to fit out privateers in U.S. ports.

Particularly difficult issues in enforcing the proclamation concerned an English merchant vessel, Little Sarah, which was seized in early May 1793 by a French privateer outfitted in Charleston, South Carolina in violation of neutrality, brought into Philadelphia, fitted out as a privateer, and renamed Little Democrat. England demanded that the vessel be returned. Hamilton favored restitution, but Jefferson urged that an apology should suffice. If the commission given the commander of the privateer that seized the vessel was illegal, Jefferson argued, then the courts would order restitution; and if the case were important enough to require reprisal, "Congress must be called on to take it; the right of reprisal being expressly lodged with them by the constitution, not with the executive." Washington agreed not to order restitution, but ordered that all illegally equipped privateers "should depart from the ports of the United States" (Ford 1895, 6: 257-59, 282). Minister Genet ignored this order, and the Little Democrat was transformed into a fourteen-gun warship, with equipment purchased in the United States and a partially U.S. crew.

On July 8, Hamilton and Secretary of War Henry Knox voted at a cabinet meeting at which Washington was absent to establish a battery at a point between Philadelphia and the sea, in order to stop Little Democrat if it should attempt to depart before the president's return. Jefferson opposed the use of force without the president's approval, though he agreed the U.S. attorney for the district should be informed that Americans might be serving on the vessel so he could "take measures for apprehending and bringing them to trial" (Ford 1895, 6: 340-44). Washington was angered at Genet's defiance of the administration's orders and disappointed that Jefferson had not taken action. Jefferson at that point agreed the vessel should be stopped in order to remove improperly installed armaments, but by then it was beyond effective detention. Jefferson later claimed that, in authorizing the use of force to stop vessels from arming in or entering U.S. ports, Washington had not contemplated major uses of force, but rather early detection and occasional use of small parties of militia.

On July 18, the administration turned to the Supreme Court for guidance with regard to the duties of neutrality and the meaning of the French-American treaties. A list of twenty-nine questions was submitted to the justices, who declined to answer. The Court would soon play an active role on issues of international law and the use of force, but the Court's guidance would only be available when cases or controversies arose. On August 3, the cabinet issued a set of "Rules Governing Belligerents," after considering whether such actions were "within the competence of the President to prohibit." "An administrative law of neutrality had been forged" (Freeman 1957, 7:111).

Washington and his cabinet were soon made aware, however, that serious uncertainties existed with regard to the orders they had issued. On May 22, 1793, Chief Justice John Jay instructed a grand jury in Richmond that they could properly indict Gideon Henfield for violating neutrality, based on the proclamation, on the theory that the federal courts had jurisdiction at common law to try individuals for violating international law. At the urging of Attorney General Edmund Randolph, Justices James Wilson, James Iredell, and District Judge Richard Peters issued the same instruction in July 1793 to the jury that tried Henfield for serving on a French privateer. The jury, however, refused to convict. The administration realized that prosecutions based on a presidential proclamation were likely to end in acquittals and decided against bringing any further prosecutions on the theory that the federal courts had jurisdiction over crimes not adopted by law (which the Supreme Court rejected in 1812). (3) When Congress reconvened in December, the president called on them "to extend the legal code and the jurisdiction of the Courts of the United States to many cases which, though dependent on principles already recognized, demand some further provisions." (4) The statute he proposed incorporated the "Rules Governing Belligerents" drawn up after the Henfield prosecution (Hamilton 1850, 4: 455-62).

The president also realized he lacked authority unilaterally to effectuate Jefferson's proposal that it would be better to pay England compensation for vessels that the United States was obliged by neutrality to return than to attempt to seize them from the French. The Constitution assigns to Congress exclusively the power to raise and spend funds. The president therefore insisted that the decision to pay compensation be communicated to the French and British ambassadors in a manner "so guarded as to convey nothing more than an opinion of the executive." When Congress reconvened, the president sent a message advising that "rather than employ force for the restitution of certain vessels, which I deemed the United States bound to restore, I thought it more advisable to satisfy the parties by avowing it to be my opinion, that, if restitution were not made, it would be incumbent on the United States to make compensation" (Ford 1891, 12: 357). The president felt empowered to decide against seizing vessels from the French and to opine that the United States was obliged to pay, but not to make a promise to do so. Seeking to increase the likelihood that compensation would in fact be paid, Hamilton (with the president's knowledge) urged Jay to make the issue of compensation part of the Jay Treaty with England, then under negotiation, because it could be ratified without approval by the pro-French, Republican-controlled House of Representatives (Sofaer 1976, 110-11).

The Pacificus-Helvidius Exchange

During this crisis, while Congress was still out of session, the proclamation and related issues were debated in print by Hamilton and Madison, the joint authors of the Federalist Papers that pertain most directly to the purposes of the Framers in separating and mixing the powers of the branches of government. On June 13, 1793, after the proclamation was issued, Madison wrote to Jefferson expressing his chagrin that the president had gone beyond declaring that the United States was at peace and enjoining Americans to behave accordingly. "The right to decide the question whether the duty & interest of the U.S. require war or peace under any given circumstances, and whether their disposition be towards the one or the other seems to be essentially & exclusively involved in the right vested in the Legislature, of declaring war in time of peace; and in the P. & S. [President and Senate] of making peace in time of war. Did no such view present itself in the discussions of the Cabinet?" (Hunt 1906, 6: 131-32). In responding on June 23, Jefferson took credit for having succeeded in deleting the word "neutrality" from the proclamation, but he explained that he did not want to oppose it altogether for fear that he would then be ineffective at ensuring that the French minister was received (Ford 1895, 6: 315-16).

Hamilton publicly defended the administration in an article under the pseudonym "Pacificus" on June 29, 1793. A proclamation of neutrality was, he wrote, the usual and proper manner for a state to make its position known to other states at war with each other, and the executive is the proper branch to make such a declaration, being "the organ of intercourse between the nation and foreign nations," the "interpreter of the national treaties," the branch charged with enforcing the laws, including treaties, and the official "in command and disposition of the public force." He advanced two theories of "executive" power to support this position: one encompassing all the powers normally considered executive except those specifically withheld; and one limited to the duty to "take care that the laws be faithfully executed." Under his narrow theory, Hamilton argued the proclamation was not a "law," but merely the statement of a "fact" with regard to the state of the nation. Under his broad theory, Hamilton assumed that Congress's power to declare war "includes the right of judging, whether the nation is or is not under obligations to make war." But he believed the president could also act, because the Constitution often gives the branches concurrent authority over the same functions. The executive had the authority in the exercise of his powers to judge the nation's obligations, even "though it may, in its consequences, affect the exercise of the power of the legislature to declare war." Significantly, however, even under his expansive view of executive power, Hamilton acknowledged that "the legislature is still free to perform its duties, according to its own sense of them" (Hamilton 1851, 7: 76-83).

Jefferson sent the Pacificus article to Madison, identifying the author as Hamilton and complaining that no one had answered Hamilton's "heresies." He later sent Madison two more articles by Pacificus, urging him to "take up your pen, select the most striking heresies, and cut him to pieces in the face of the public" (Ford 1895, 6: 38). Madison obliged, responding as Helvidius in articles appearing between August 24 and September 14. He claimed that the powers to make treaties and declare war are not properly considered by their nature "executive." But the gist of his attack was on Hamilton's claim of concurrent power. If, as Hamilton assumed, the power to declare war includes the power to judge whether the nation is under an obligation to make war, then all judgments concerning war were necessarily and exclusively part of the legislative function. Whenever the issue arises whether war should be declared or was required by a treaty, Madison wrote, "the question necessarily belongs to the department to which those functions belong--and no other department can be in the execution of its proper functions, if it should undertake to decide such a question." He rejected the notion that two branches could both have the power to judge the state of the nation; the executive was bound to enforce neutrality only because it was duty bound to preserve the peace in all cases, until war is declared. He insisted on "a rigid adherence to the simple, the received, and the fundamental doctrine of the constitution, that the power to declare war, including the power of judging of the causes of war, is fully and exclusively vested in the legislature." Madison dismissed the concern that war might result if the president could not act in Congress's absence, stating that the president was "not responsible for the consequences" (Hunt 1906, 6: 134-82).

Congressional Reaction

The president explained his actions to Congress on December 3, 1793. When war erupted, he said, it became "my duty to admonish our citizens against hostile acts," and to obtain "by a declaration of the existing legal state of things, an easier admission of our right to the immunities belonging to our situation." Now, he said, "it rests with the wisdom of Congress to correct, improve, or enforce the plan he had announced to preserve neutrality," noting especially the need to confer jurisdiction on the courts to interpret and enforce the rules (Ford 1891, 12: 352). Jefferson later wrote that the president "never had an idea that he could bind Congress against declaring war, or that anything contained in his proclamation could look beyond the first day of their meeting" (Washington 1853-1854, 9: 179).

Both houses of Congress adopted resolutions praising the president for his handling of the crisis. (5) No support for Madison's views was expressed in the resolutions or discussion. After considerable debate, on June 5, 1794, Congress provided financing and other authority for enforcing neutrality, including the power to use force to seize or expel offending vessels. (6)

The issues raised by Washington's proclamation demonstrate that the process of decision making under the Constitution from the very beginning has involved the exercise by all three branches of concurrent powers over foreign and military affairs. The incident illustrates how the conduct and claims of officials who were responsible for drafting the Constitution, in exercising various powers, took into account other related and potentially conflicting powers. In this sense, the process generated by overlapping powers was even more instructive than the specific acts and statements, in that the participants might have expressed other views or taken other measures, but the dynamic created by a divided but mixed government would nevertheless have presented itself at every significant point. The existence of powers in one branch that could support a given action or statement led neither branch to treat those powers as exclusive, nor to treat them as insignificant because of the existence of other, countervailing powers in another branch. The president had strong arguments to support issuing and enforcing a proclamation aimed at keeping the United States out of a war, and Congress approved his having done so. Congress's powers did not prevent the president from performing his functions. At the same time, both Washington and Hamilton acknowledged that Congress could authoritatively establish the national policy by accepting, rejecting, or modifying the president's positions, and only Congress could provide for full enforcement (though even those decisions were subject to the president's veto). By inviting Congress to "correct, improve, or enforce" his proclamation, Washington recognized that he was operating, not on the basis of independent or exclusive powers, but rather as one branch involved in a process with another branch possessing its own concurrent powers.

It also became clear during that period that the powers of both branches were subject to possible judicial review, by courts that were themselves dependent on Congress and the president for funds, jurisdictional allocations, appointments, and the means to enforce their judgments. While the Supreme Court justices refused to answer abstract questions posed by the president, they addressed (even if incorrectly) the power of federal courts to prosecute crimes not legislatively approved by Congress. After neutrality with France became impossible to maintain, the Court passed on several legal issues that established important principles regarding power over national security. It upheld Congress's power to authorize and control a "Quasi War" based on legislation rather than a declaration of war. (7) It also ruled that, although the president as commander in chief normally may seize any enemy vessel in an authorized war, Congress may limit this authority by specifying the circumstances in which ships can be seized. (8)

The events surrounding the neutrality proclamation make clear that the meaning of executive power cannot accurately be described without at the same time taking into account that every power vested in any branch (even "exclusive" powers) is limited by the existence of other, related powers, vested in the other branches. The ambiguities created by this complex and dynamic system are nowhere dealt with more effectively than in Justice Jackson's concurring opinion in Youngstown. Jackson's opinion has received widespread attention and respect, not because he succeeded in defining the meaning of executive power. He did not even attempt to do so. Rather, he succeeded in providing instead a practical method for reviewing the exercise of executive power within a system of predominantly concurrent rather than exclusive authorities.

The Youngstown Method

In its 1952 decision in Youngstown, the Supreme Court invalidated President Harry Truman's seizure of steel mills in order to prevent them from being shut down in a labor dispute during the Korean War. Justice Hugo Black's opinion for the Court characterized as "legislative" the issue of whether the government ought to seize steel mills and therefore beyond the president's "executive" power. "In the framework of our Constitution," Justice Black wrote, "the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the law-making process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad." (9)

Justices Felix Frankfurter and Jackson, among other justices, rejected this "formal" approach to separation of powers decisions, based on the nature of the power of each branch. Justice Jackson doubted that Justice Black's attempted bifurcation of authority between what is "legislative" and what is "executive" could be successfully applied. Justice Frankfurter made the same point, quoting Justice Oliver Wendell Holmes in Springer v. Government of Philippine Islands: "The great ordinances of the Constitution do not establish and divide fields of black and white." (10) Both Frankfurter and Jackson espoused a more functional view. Jackson wrote:

 The actual art of governing under our Constitution does not and
 cannot conform to judicial definitions of the power of any of its
 branches based on isolated clauses or even single Articles torn
 from context. While the Constitution diffuses power the better to
 secure liberty, it also contemplates that practice will integrate
 the dispersed powers into a workable government. It enjoins upon its
 branches separateness but interdependence, autonomy but reciprocity.
 Presidential powers are not fixed but fluctuate, depending upon
 their disjunction or conjunction with those of Congress. (11)

Frankfurter and Jackson agreed that acts of the president may sometimes violate specifically assigned powers or prohibitions in the Constitution. Absent a sufficiently clear prohibition on certain conduct, however, they regarded the president's powers as potentially extending to actions that could be considered "legislative" or that otherwise fall within the scope of powers of the other branches. Jackson concluded, therefore, that the most effective way to evaluate the legality of executive conduct that did not violate specific provisions in the Constitution was to determine whether Congress had approved or disapproved that conduct. Thus, Justice Jackson wrote: "When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate." (12) On the other hand: "When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter." (13) Under this view, Congress's approval or disapproval of an executive action is a controlling factor in determining the action's legality, absent some independent and overriding executive authority. Both Jackson and Frankfurter found the seizure in Youngstown invalid, because even if not unconstitutional by its nature, it was inconsistent with Congress's decision against conferring such authority, which they found on the facts implied its disapproval.

Jackson also suggested an approach, not a rule, where Congress fails to express its support or opposition to an executive action not clearly precluded by the Constitution. In such situations, the president's conduct is in a "zone of twilight," he wrote, in which both branches may have concurrent authority, and legislative inaction will not preclude determinations upholding the executive action at issue:

 When the President acts in absence of either a congressional grant
 or denial of authority, he can only rely upon his own independent
 powers, but there is a zone of twilight in which he and Congress may
 have concurrent authority, or in which its distribution is
 uncertain. Therefore, congressional inertia, indifference or
 quiescence may sometimes, at least as a practical matter, enable, if
 not invite, measures on independent presidential responsibility. In
 this area, any actual test of power is likely to depend on the
 imperatives of events and contemporary imponderables rather than on
 abstract theories of law. (14)

The categories in Jackson's opinion provide a roadmap for dealing with the legality of executive actions. Applying those categories to contemporary issues illustrates the parameters of presidential power and its relationship to the powers of Congress and of the courts.

Actions that Violate Constitutional Limitations

The principle that executive actions may violate specific provisions in the Constitution, though seldom controlling in actual controversies, is a fundamental aspect of the constitutional plan which the Supreme Court regards its duty to maintain. The Court has found unconstitutional legislative schemes, executive actions, and judicial assertions of power because they were inconsistent with limitations expressed in or implied from constitutional language or may represent or allow aggrandizement or encroachment of one branch's authority by another. The Court ruled, for example, that Congress may not authorize one-House vetoes of decisions of the attorney general to suspend the deportation of aliens. One-House vetoes are legislative actions, the Court found, in a form inconsistent with the unambiguous presentment and bicameral requirements of the Constitution: "Explicit and unambiguous provisions of the Constitution prescribe and define the respective functions of the Congress and of the Executive in the legislative process." (15) The two-House vetoes in the Federal Trade Commission Improvements Act of 1980 met a similar fate, (16) as did an effort to move the nation toward a balanced budget through cuts in spending supervised by the comptroller general, an officer removable by Congress. Even the dissenters to the latter decision agreed that "the constitutional scheme of separated powers does prevent Congress from reserving an executive role for itself or for its 'agents,'" but argued that it had done neither in that particular case. (17) The line item veto was invalidated, because it was inconsistent with the specific plan of the Constitution for the passage of legislation. (18)

The Court enforces the language and structure of the Constitution, (19) recognizing that the Framers' overarching purpose was to achieve a balance of power between the political branches, even though that objective may be inconsistent with efficiency or other claims of improved government. (20) On the other hand, the Court has upheld novel provisions or practices not clearly proscribed, where they pose no threat of "aggrandizement" or "encroachment" by one branch upon another. (21)

Some executive powers are so specific and exclusive that Congress may not regulate their exercise. The pardon power, for example, may not be limited or otherwise restricted by legislation. How far this principle goes is uncertain. It certainly does not extend to the point that it would interfere with specifically assigned legislative powers, but rather seems to restrict Congress's use of the general power to pass "necessary and proper" laws. It is inapplicable to Congress's power over spending, so Congress could probably influence as a practical matter the exercise even of exclusively held executive powers (Prakash 2005, 91: 215).

The Constitution also by its terms precludes some forms of executive conduct as inconsistent with powers assigned to Congress. Congress has the exclusive power to raise funds for all purposes under the Constitution. This is a major restraint on executive power, so long as Congress has not provided funds that are within the president's discretion to spend. The scheme by some officials in the Reagan administration to sell arms owned by the United States for a profit in order to raise money to support the Contras in Nicaragua violated this principle. (22) President Abraham Lincoln's suspension of habeas corpus was also illegal, because the Constitution is understood to assign the power to suspend habeas corpus in emergencies to Congress. (23) Lincoln claimed his unconstitutional act was necessary to save the Constitution and expected Congress to approve the suspension (Cox 1984, 218).

Another category of restraints based on constitutional provisions is less predictable but important. The Court has often refused to uphold civil liberties claims in the face of executive decisions during times of crisis. It has in general accepted executive branch positions in emergencies without careful scrutiny. Even though, for example, the Court requires a clear and present danger to justify the prohibition of protected speech, it applied that test during World War I in a highly deferential manner. This tendency may be altered to some extent, due to the widespread recognition that executive claims in support of civil liberty deprivations are often unsubstantiated in retrospect (Brennan 1988). The Supreme Court in 2004 (Hamdi and Rasul) accepted the proposition that the president may hold prisoners of war until the end of an authorized military conflict, but held that the Due Process Clause requires that any such prisoner who is a U.S. national on U.S. territory must be given notice of the government's claim regarding his status and an opportunity to challenge the factual assumptions underlying that claim before a neutral decision maker. Citing Youngstown, the Court stated: "We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens." (24)

Many types of executive conduct have been accepted as being consistent with the Constitution, despite the claim that the functions at issue are exclusively assigned to Congress. Presidents since Washington have exercised their powers, despite the fact that doing so might cause a military conflict. Congress's power to declare war includes the power to determine when and how the nation should fight undeclared wars. But the fact that Congress is empowered to decide such issues does not preclude presidents from using assigned powers despite the possibility that their exercise might result in conflict. The president may also use force without legislative approval to defend the nation, despite Congress's power to declare war. Notes of the Constitutional Convention debates recite that Congress was given the power to "declare" war, rather than to "make" war, in order to permit the president to defend against "sudden attacks" (Farrand 1937, 2: 318), but self-defense is not so restricted in practice. Presidents are widely regarded as vested with the power of the nation to act consistent with international law for such purposes as defending U.S. nationals, armed forces, or property from attacks, or rescuing nationals in danger. Presidents have often used limited force in a variety of situations, and the War Powers Resolution implicitly condones some uses of force for limited times without legislative approval. (25)

While the Constitution contains no provision that precludes executive uses of force without legislative approval, presidents have rarely claimed the power unilaterally to take the nation into a major military conflict and (though sometimes asserting they can act unilaterally) have only done so with Congress's approval in the form at least of knowing financial support. The manner in which Washington and his cabinet handled the crisis caused by the war between France and England indicates that, while the president could use his explicit powers despite the danger of causing war, these actions were to be taken with a view to avoiding war. Other clear examples exist, including President James Monroe's decision to give up attempting to take control of West Florida by force, after Congress refused repeated requests for such authority (Sofaer 1976, 378). Absent legislative approval in some adequate form, the president lacks authority to engage in major military actions that cannot be justified on the basis of self-defense.

Legislative Approval of Executive Actions

So long as Congress acts consistently with the Constitution, its support of the president maximizes the president's authority and its opposition leaves the president to rely on his exclusive powers for authority. Justice Jackson assumed in advancing this generalization that Congress's will with regard to national policy in general prevails, as it is vested with the legislative power of the nation. This assumption is consistent with the views of the Framers, executive practice, and authoritative Supreme Court decisions. Where Congress expresses a view, therefore, even implicitly by denying a requested authority, as in Youngstown, the second principle of separation of powers decision making applies, and Congress's intent generally prevails.

The Supreme Court has ruled that Congress controls the extent of legislatively approved ("limited") wars, and any limit established by legislation restricts the president's power to use force even where he could lawfully have done so in the absence of the limitation. (26) In Little v. Barreme, Chief Justice John Marshall construed a legislative grant of power to seize vessels engaged in trade to any French port to prevent the president from authorizing the seizure of vessels engaged in trade from any French port. (27) When Congress has ordered that funds may not be used for a particular use of force or other national security purpose, presidents have complied, despite having opposed such legislation. Congress has passed legislation requiring, for example, that funds not be used after a specified date for the support of combat troops in Cambodia (1970), for the support of any combat activities related to the war in Vietnam (1974), and for the use of armed forces in Somalia (1994) or in Rwanda (1994) (Grimmett 2001). Limitations on the use of funds to support the contras in Nicaragua varied from year to year, and such spending as occurred in violation of the few clear limits that were adopted was done secretly in order to avoid Congress's legal mandate. Congress is able to control the president's use of appropriated funds even in situations where, but for Congress's limitation, the president would have authority to act. When, despite the president's long-established power to decide not to spend monies appropriated by Congress, Congress required the president to spend monies that it appropriated, that decision was controlling. (28)

Advocates of executive power have claimed in recent years that the president has inherent and exclusive powers in the national security area that are beyond Congress's power to limit or regulate. Some executive powers, as noted above, are exclusive and beyond Congress's power to regulate directly. In general, however, the claim to powers over national security that are beyond Congress's capacity to regulate is baseless. (29) Justice Jackson dismissed the Truman administration's reliance on "nebulous, inherent powers never expressly granted but said to have accrued to the office from the customs and claims of preceding administrations." What he said then about executive power claims based on these vague phrases remains true today: "Loose and irresponsible use of adjectives colors all nonlegal and much legal discussion of presidential powers. 'Inherent' powers, 'implied' powers, 'plenary' powers, 'war' powers, 'emergency' powers, are used, often interchangeably and without fixed or ascertainable meanings." (30) So inadequate is the argument that the president may disregard a law applicable to his conduct that it was not even advanced by the Bush administration in Hamdan, and would in any event have been rejected. The Court concluded: "Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 519, 637 (1952) Jackson, J., concurring. The Government does not argue otherwise." (31)

Anti-executive power advocates, however, have their own exaggerated claims. They often fail to acknowledge that, just as Congress can control and limit the president, it can empower the president by broadly delegating authority to him over national security issues, including the use of force. Congress has frequently approved the use of force in sweeping delegations of power, as in the Gulf of Tonkin Resolution of 1964 and the 2001 resolution authorizing force against those responsible for the attacks of 9/11. And just as the Court in Youngstown found that Congress can implicitly deny the president power to take a given action, Congress can implicitly grant power to the president. When Congress authorized the building of vessels intended for use against piracy in the Mediterranean, for example, it was understood to convey authority to use the vessels for that or any other defensive purpose (Sofaer 1976, 156-58). An argument for implied authority exists whenever Congress puts a military capacity at the disposal of the president that is likely to require prompt and secret action, ranging from the missiles and bombs needed for a retaliatory nuclear strike to a special force intended for the rescue of hostages.

In some instances, a failure by Congress to legislate may be seen as approval, rather than as disapproval, of presidential action, depending on the context and circumstances. In Dames & Moore v. Regan, the Court upheld an executive agreement establishing a method for settling claims with Iran and suspending pursuit of such claims in the federal courts. The Supreme Court concluded that "Congress has implicitly approved the practice of claim settlement by executive agreement" by arranging and paying to implement such arrangements. (32)

Congress can also approve military actions by paying for them. Early in the Vietnam War, before Congress began acting to express its disapproval, the Second Circuit found that the war was lawful, in part because Congress had paid for its operation:

 [T]he test [for mutual congressional participation in the prosecution
 of war] is whether there is any action by the Congress sufficient to
 authorize or ratify the military activity in question .... Congress
 has ratified the executive's initiatives by appropriating billions of
 dollars to carry out military operations in Southeast Asia and by
 extending the Military Selective Service Act with full knowledge
 that persons conscripted under the Act had been, and would continue
 to be, sent to Vietnam. (33)

A more recent example is Congress's approval of the military action in Kosovo, to prevent the ethnic cleansing of Muslims. Congress failed explicitly to approve or to disapprove the operation, but the Senate clearly signaled its approval for air operations before March 24, 1999 (the House votes were more ambiguous), when President Bill Clinton ordered the bombing to begin, and on May 20, while the bombing continued, Congress paid for "Operation Allied Force," knowing that the funds were intended to pay the bill for bombing Kosovo (Sofaer 2000, 74-75).

The major action that is most difficult to justify in terms of legislative approval is President Truman's decision to authorize the use of armed force to defend South Korea from an attack by North Korea that commenced on Sunday, June 25, 1950. Later that day, the United Nations Security Council voted to order North Korea to withdraw, and Truman ordered the use of air and naval power to evacuate Americans and transport ammunition and supplies to the South. The president did not seek legislation authorizing the action, though he would certainly have obtained that support. Instead, he consulted with Senator Tom Connally, chairman of the Senate Foreign Relations Committee, on Monday, June 26, who said he did not believe legislative approval was necessary for what he regarded as a defensive war. That evening, Truman authorized the use of air and naval power to support South Korea. He later consulted with other legislators who supported the initiative, but he never sought explicit legislative approval and claimed the right to use the armed forces without such approval (Crabb and Holt 1989, 127-32). After the war was underway, however, Congress supported it by extending the draft and with special appropriations intended to pay for the military operation. These actions constituted retroactive approval, much as President Lincoln had secured retroactive approval for some of his actions during the Civil War. As Professor Ely commented: "Hornbook law seems generally to be that programs unauthorized at the time can constitutionally be authorized retroactively by Congress, nunc pro tunc (thus rendering them legal not simply 'from now on' but 'from the outset' as well). E.g., Swayne & Hoyt, Ltd. v. United States, 300 U.S. 297 (1937)" (Ely 1993, 10-11, 198 n.55). Truman was wrong that he had the power to act unilaterally. He correctly judged Congress's position, however, and therefore never faced a true test of his exaggerated claims. Had Congress indicated its disapproval, he would have suffered two defeats in the Supreme Court over Korea, not just the decision in Youngstown.

Congress adopted the War Powers Resolution (WPR) in an attempt to prevent the executive and the courts from relying upon the traditional bases for ascertaining legislative approval. Section 8 provides that an inference of approval of a particular military action may be found in legislation (or in a law implementing a treaty) only if the law "specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and states that it is intended to constitute specific statutory authorization with the meaning of this chapter." (34) The WPR seeks to require the executive and the courts to disregard evidence of approval (including resolutions approving the conduct at issue and appropriations specifically passed to pay for it), unless Congress states specifically that the legislation relied upon is intended as approval under the WPR.

This effort to restrict the form of approval is inconsistent with universally accepted standards for determining civil or criminal responsibility under national law, or state responsibility under international law. No criminal group, no corporation, no individual, could avoid responsibility for conduct that it knowingly supported or paid for. It is irresponsible for Congress to claim otherwise. Furthermore, the Supreme Court has invalidated an effort by one Congress to limit the definition of a word in an unreasonably restrictive manner, and the doctrine against entrenched legislation precludes the application of such formulae in a manner that controls all future Congresses (Eule 1987, 379). (35) How could one law forever restrict the legal significance of what Congress does under subsequent law, especially when the law that is earlier in time seeks artificially to limit the legal consequences of subsequent legislative conduct? Section 8 of the WPR is an effort to modify the Framers' plan by encroaching on the president's potential claims to authority in interbranch disputes. It would, if valid, enable Congress to disclaim the intended consequences of its actions in order to place sole responsibility on the president for acts Congress knowingly made possible. It is hardly surprising that Congress has failed to enforce this provision, and that the courts have refused to intervene (Sofaer 2000).

A treaty may provide support for an executive use of force, without further legislative action, though the House of Representative retains the power to deny funding for even such uses of force. But the language and intent of Congress with regard to the treaties most often claimed to justify this claim--the UN Charter and the treaty establishing NATO--do not confer legislative approval. These treaties provide that uses of force contemplated pursuant to their provisions will be approved in accordance with the constitutional process of each member state. Resolutions of the United Nations Security Council establish the legality of uses of force under international law, but they are insufficient to provide authority under the U.S. Constitution for actions that would otherwise be illegal (Stromseth 1995). The legal process required by the Constitution to approve a use of force is made no less complicated because of a reference to it in a treaty. The president would still be empowered to act in self-defense and within the full scope of his powers, and Congress would still be empowered to approve, disapprove, or limit what the president proposes or does. But a treaty calling for approval under the U.S. legal system cannot itself tenably be relied upon as proof of legislative approval.

Executive Power in the Zone of Twilight

It is difficult to know precisely what Justice Jackson meant by executive actions that fall within the zone of twilight. Chief Justice William Rehnquist construed what Jackson acknowledged was "a somewhat over-simplified grouping" as representing points on "a spectrum running from explicit congressional authorization to explicit congressional prohibition." (36) It seems that Jackson meant that in some cases the Court will be able to find Congress had approved an executive action (increasing the likelihood that it is lawful), in some cases the Court will be able to conclude that Congress had disapproved (increasing the likelihood of its illegality), but that in some cases neither of these conclusions might be possible. The latter situations, Jackson wrote, are those in which the president and Congress "may have concurrent authority, or in which its distribution is uncertain." By failing to act decisively in such instances, Congress could "enable, if not invite, measures on independent presidential responsibility." (37) The scope of this principle can be seen in the rule that Congress's mere acquiescence to a course of executive conduct, even if not amounting to approval, may in some circumstances be treated as sufficient to justify its continuity. Justice Frankfurter, in criticizing Justice Black's formalistic approach in Youngstown, wrote: "It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. A systematic, unbroken, Executive practice, long pursued with the knowledge of Congress and never before questioned, may be treated as a gloss on the meaning of 'executive Power' as vested in the President." (38) Justice Jackson understood this principle to extend, not just to situations in which Congress makes a deliberate decision to acquiesce in an executive practice, but also to those in which Congress expresses neither approval nor disapproval but simply allows the conduct to continue unchecked. "We may say," he wrote, "that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers." (39) The Supreme Court has applied this principle to uphold the legality (and supremacy over state law) of executive agreements, even when not authorized by Congress. (40)

An example of executive action within Jackson's zone of twilight might be the Gulf of Sidra exercise during the Reagan administration. Congress had at least implicitly approved the U.S. Navy's program of ensuring freedom of the high seas by knowingly funding its operation. President Ronald Reagan knew that he could cause a military confrontation when he used this authority in 1986 to challenge Libya's claims by sailing U.S. public vessels across the Gulf of Sidra. The president may even have welcomed an effort by Libya to block the exercise, so he could use force to punish Libya for supporting terrorism. The president regarded himself as legally entitled to engage in the operation despite the heightened risk of military action (which did in fact occur), and he reported the incident to Congress without any reference to the WPR. Congress took no action to indicate approval or disapproval of this activity, thereby leaving the conduct within the zone contemplated by Justice Jackson, in which the president remains free to act on the basis of executive authority, because the Congress has not attempted to establish limits on the degree of risk involved.

Advocates of "interbranch dialogue and bipartisan consensus," like Professors Koh (1990) and Ely (1993), may condemn this principle as condoning "legislative inactivity." But this principle neither condones nor condemns Congress's failure to act. The power to set national policy is not a device for ensuring that Congress will in fact exercise control in all situations, or that it will do so explicitly and unambiguously.

The concept of a zone of twilight, in which authority may be concurrent and therefore uncertain, is part of Jackson's insightful description of how the American constitutional system works and was intended to work. Where Congress does nothing definitive in situations of concurrent authority or where the distribution of authority is uncertain, the outcome "is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law by political circumstances." This result suggests not only the propriety of resorting in such cases to judicial abstention based on the political question, standing, or other doctrines but the necessity of doing so in order to preserve the Constitution's plan.

Executive actions that fall within the zone of twilight do so because of uncertainties that result from the deliberate assignment to the branches of overlapping powers designed to enable each to make legitimate claims to authority in the anticipated battles over governmental power. To clarify powers in this context would narrow uncertainty and end conflicting claims in situations where the Framers vested powers concurrently in order to enable both branches to act and thereby to ensure the capacity for enduring conflict. The Framers anticipated that the branches would clash in situations where both have legitimate claims to authority, and the courts should no more decide such conflicts on behalf of one branch or the other than they should allow the branches acting alone or together to alter other intended parts of the constitutional scheme.

The Framers wanted the political branches to have the means--which in the U.S. system means the legally supportable measures of opposition--to contest each other's claims. Every clarification and limitation issued by the courts in such situations would reduce the type and scope of available measures for legitimate conflict. This, in turn, could tend to make it more likely over time that one branch would be able to control the other on these fundamental issues. The courts should avoid "clarifications" of authority that could facilitate such a development.

Conclusion

Bush administration attorneys have triggered a new round of debate over the scope of executive power. Their claim to executive authority over the use of force and other national security issues that is beyond the control of Congress is no more meritorious today than it would have been in 1793, when Washington issued his proclamation, or in 1932, when the Court and Justice Jackson rejected the argument.

The Constitution allocates powers over national security to all the branches that enable each to affect national policy. Concurrent authority is the general rule of constitutional allocations, because the Framers wanted to mix powers, not merely to separate them. This means that the executive may use his powers on national security issues with initiative, but that the president's authority is subject to the exercise of Congress's powers, and to the Supreme Court's decisions on conflicting interpretations. Where Congress disapproves of the president's action, the president's authority depends on the existence of some separate and independent power to overcome Congress's legislative authorities. Congress is also empowered, however, to authorize executive actions in any form sufficient to constitute approval. The power of Congress to delegate authority to use force is clearly established, and courts have uniformly held that Congress approves an action by knowingly funding it. In addition, the fact that the president has concurrent powers over many aspects of national security explains why the president can sometimes act lawfully on such issues when Congress has neither approved nor disapproved his conduct.

This set of rules makes clear why executive authority can only be properly understood in light of the powers assigned to the other branches, in a system of concurrent, rather than exclusive, authorities.

More fundamentally, the system of mixed government intended by the Framers, and still the most tenable explanation of the U.S. system, remains essential to prevent tyranny while enabling each branch of the government to be active and effective in dealing with national security challenges. Recent arguments of executive power advocates against this system of mixed powers have been authoritatively rejected or abandoned. Yet, the fact that such claims were so vigorously advanced by such high-ranking executive officials makes it clear that the Framers' concerns remain valid. Of particular concern is the fact that several policies having a direct relationship to tyranny (including indefinite detention, harsh if not illegal interrogation, and unsupervised electronic surveillance) were implemented secretly with the intention that they would remain--indeed with the claim that they were entitled to remain--beyond the control of Congress or the courts. The U.S. system of mixed government was designed by the Framers to provoke appropriate, corrective rulings and practices to check executive initiatives, whether or not they violate the Constitution. Secret operations could preclude the system from functioning in its intended manner.

It is equally important to remember, however, that the system of mixed government was designed to enable the president to be active and effective in protecting and advancing U.S. interests. It also contemplates that Congress is able to approve and fund national security programs and military actions, and that such decisions are constitutionally valid however unhappy the consequences. Efforts to improve the quality of executive or legislative or judicial decision making on national security issues should continue. But it is neither constitutionally proper nor likely to be functionally effective to expect that one change or another in procedures or legal requirements will lead to a system that produces better national security outcomes.

It is difficult to understand, for example, the basis upon which some assume that the more involved Congress becomes on use of force issues the better off the United States will be. Congress certainly knows it has the power to prevent or to terminate uses of force. Given this reality, why would anyone expect that additional rules that purport to limit the president's power by redefining the meaning of approval, for example, will lead to more responsible and effective legislative action? The nature of Congress cannot so easily be altered. If the objective is to put pressure on Congress to accept responsibility for its decisions, why is not the better rule to deem Congress to have approved all the actions Congress supports or otherwise knowingly makes possible? If Congress has the power to act and fails to do so, why is it more likely to act and take responsibility if the courts were available to stop the president from acting?

Moreover, what gives supporters of a rule requiring legislative approval in advance of all uses of force the confidence to believe that the nation will be best served by a more active Congress, and particularly one that disallows executive actions? It is a matter of intense dispute whether the nation's interests were better served when Congress has funded military operations supported by the executive, or when Congress has acted to constrain them. Secretary of State George P. Shultz concluded, for example, that the limitation placed by Congress on the use of troops in Lebanon in 1983 undermined the credibility of U.S. efforts there, and was regarded by Syria as a clear sign that the United States lacked resolve (Shultz 1993, 230-31). Among the most definitive legislative directions that funds not be used to support a military action was a September 1994 law that prevented the U.S. armed forces from preventing the Rwandan genocide. (41) There simply is no basis to believe that better decisions about war and peace will be made merely because Congress is required rather than merely empowered to act.

The Constitution and its history support the view that situations in which the branches have concurrent--and hence uncertain--authority reflect the intended functioning of the Framers' design. It would be wrong, and likely do far more harm than good, to alter this plan, either in a quest for effective executive authority to win a "war on terror" or for the purpose of depriving the executive of authorities to act when Congress is unable or unwilling to do so. The Supreme Court should continue to ensure that no branch is successful in preventing the others from exercising the full range of their powers, including those that are concurrently held and therefore likely to cause controversy and competition. The authority of each branch has limits. But the system was intended to provide capacities to all the branches that enabled and were expected to lead them to compete with and thereby constrain the others. The rules for such a system should aim to allow the full range of disputes to remain unregulated, as a symptom of constitutional well-being. In sum, my answer to the questions posed for this exercise remains that:

 The Framers expected the branches to battle each other to acquire
 and to defend power. To prevent the supremacy of one branch over any
 other in these battles, powers were mixed; each branch was granted
 important powers over the same area of activity. The British and
 Confederation experiences had led the Framers to avoid regarding
 controversy between the branches as a conflict between good and evil
 or right and wrong, requiring definitive, institutionally permanent
 resolution. Rather they viewed such conflict as an expression of the
 aggressive and perverse part of human nature that demanded outlet
 but had to be kept from finding lasting resolution so that liberty
 could be preserved. (Sofaer 1976, 60)

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(1.) Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634-35 (1952).

(2.) A group of distinguished scholars--Jack N. Rakove, Fred Anderson, Caroline Cox, R. Don Higgenbotham, Charles A. Lofgren, Robert L. Middlekauf, Lois G. Schwoerer, and John Shy--filed an amicus brief in Hamdan v. Rumsfeld, U.S. Supreme Court, no. 05-184, supporting the position that the president lacks inherent power of the sort claimed by the Bush administration. In the brief, they rely on their view of the background and history of the U.S. Constitution and the aversion to the notion of royal prerogatives. They properly conclude that the Framers would have rejected the notion that the president has extensive powers over national security that are not subject to legislative control. Louis Fisher, in a separate amicus brief in Hamdan v. Rumsfeld, also argued against an inherent power for the president to establish military commissions. This point may seem important today, given the Bush administration's claims, but it is not the issue on which most executive power controversies turn. The Bush administration in fact did not even claim that it could disregard legislation found by the Court to apply to persons in Hamdan's position. 126 S. Ct. 2749, 2774 n.23. Hamilton advanced two versions of executive power in his debate with Madison, and neither supported the view that Congress lacked the power to set national policy. The pivotal issue between Hamilton and Madison had nothing to do with Congress's ultimate authority and everything to do with the president's power in the absence of legislative direction. The issue was not whether the president was supreme, but whether he was powerless to use his own authorities, because his actions might prejudice Congress's power over war. The actions of all three branches make clear that Hamilton, not Madison, correctly described executive power in this regard. Madison's arguments on this point disregarded the reasons he had given in the Federalist Papers for the fact that the Constitution had "mixed" powers in both the political branches.

(3.) The Court assumed that necessity may imply "powers to the general Government," but concluded that it did not follow that the courts could thereby be "vested with jurisdiction over any particular act done by an individual in supposed violation of the peace and dignity of the sovereign power. The legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the Court that shall have jurisdiction over the offence." United States v. Hudson, 11 U.S. 32, 34 (1812).

(4.) Annals of Congress. 1834-1856. Debates and proceedings in the Congress of the United States, 1789-1824, 42 vols. Washington, DC: Gales and Seaton 4:11.

(5.) Ibid., 4: 17-18, 138.

(6.) Ibid., 4: 1461-64, 743-57.

(7.) Bas v. Tingy, 4 U.S. 37 (1800).

(8.) Little v. Barreme, 6 U.S. 170 (1808).

(9.) 343 U.S. 587.

(10.) 277 U.S. 189, 209 0928).

(11.) 343 U.S. 633.

(12.) Ibid.

(13.) Ibid., 637.

(14.) Ibid.

(15.) INS v. Chadha, 462 U.S. 919 (1983).

(16.) For example, Process Gas Consumers Group v. Consumers Energy Council, 463 U.S. 1216 (1983).

(17.) Bowsher v. Synar, 478 U.S. 714, 765 (1986). See Buckley v. Valeo, 424 U.S. 1 (1976) (Federal Election Commission invalidated because the majority of members were appointed by legislative leaders); Metropolitan Washington Airports Authority v. Citizens for Abatement of Airport Noise, Inc., 501 U.S. 252 (1991) (invalidating act conditioning transfer of Dulles and National Airports to authority on which nine congressional members were to serve in their "individual capacities").

(18.) Clinton v. New York City, 524 U.S. 417 (1998).

(19.) For example, Reid v. Covert, 354 U.S. 1, 8 (1957).

(20.) "{I}t would be mistaken and mischievous for the political branches to forget that the sworn obligation to preserve and protect the Constitution in maintaining the federal balance is their own in the first and primary instance." United States v. Lopez, 514 U.S. 549, 577 (1995) (Kennedy, J., concurring).

(21.) For example, Mistretta v. United States, 488 U.S. 361 (1989) (upholding sentencing commission which included judges and which limited the president's removal power to "good cause").

(22.) Both the majority and minority of the Joint Committee agreed that, if the funds from the arms sales to Iran were property of the United States, the surplus realized should have gone into the U.S. Treasury. S. Report no. 100-216; H. Report no. 100-433. 100th Cong., 1st sess. (November 1987).

(23.) The provision allowing suspension "when in Cases of Rebellion or Invasion the public Safety may require it" appears in Article I, section 9, which deals with the powers of Congress.

(24.) Hamdi v. Rumsfeld, 542 U.S. 507, 519 (2004).

(25.) Pub. Law 93-148.

(26.) Talbot v. Seeman, 5 U.S. 1 (1801).

(27.) 6 U.S. 170 (1804).

(28.) Train v. City of New York, 420 U.S. 35 (1975).

(29.) The weaknesses of the arguments made by Professor John Yoo and others have been thoroughly addressed by Louis Fisher (Fisher 2006, 1230-47). Professor Yoo is correct, however, in arguing that the president has the power to act without prior legislative approval to protect the United States, its nationals, and even its interests; and he properly recognizes that Congress is entitled to use its power over funds to stop executive actions (Yoo 2005, 294).

(30.) 343 U.S. 646-47.

(31.) 126 S. Ct. 2749, 2774 n.23.

(32.) 453 u.s. 654, 680 (1981).

(33.) Orlando v. Laird, 443 F.2d 1039, 1042 (2d Cir.), cert. denied, 404 U.S. 689 (1971).

(34.) The War Powers Act of 1973, Pub. Law 93-148.

(35.) Marcello v. Bonds, 349 U.S. 302 (1955).

(36.) 453 U.S. 669.

(37.) 343 U.S. 657.

(38.) Ibid., 610-11.

(39.) Ibid., 654.

(40.) United States v. Belmont, 301 U.S. 324 (1937).

(41.) P.L. 103-335, preventing use of funds in the Department of Defense Appropriations Act for FY 1995 for U.S. forces in Operation Support Hope after October 7, 1994, except as necessary to protect the lives of U.S. citizens.

ABRAHAM D. SOFAER

Stanford University

Abraham D. Sofaer is George P. Shultz Senior Fellow at The Hoover Institution, Stanford University. Mr. Sofaer was a professor of law at Columbia University, 1969-1979, U.S. district judge, 1979-1985, and legal adviser to the U.S. Department of State, 1985-1990.