Executive Power

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EXECUTIVE POWER

Article II of the Constitution vests "the executive power" of the United States in the President, whereas Article I vests in Congress those legislative powers "herein granted," and Article III says that the jurisdiction of the federal courts extends only to the subjects enumerated in the article. The common reader would normally construe these provisions to confer the entire executive power on the President, while granting Congress and the courts only parts of the legislative and judicial authority of the United States. As so often happens, however, the common reader has had a difficult time. From the first term of President george washington, there has been a considerable debate over the scope of the President's executive power.

One party, labeled "Super-Whigs" by edward s. corwin, views all the powers of the national government with grudging suspicion as necessary but distasteful restraints on the powers of the states or the people. For members of this party, the first principle of constitutional exegesis is that the Constitution provides limited and enumerated powers that should be narrowly construed. They read the first sentence of Article II as a "mere designation" of the President's office and would confine the President's authority strictly to those examples of the executive power mentioned in the constitutional text: the veto power, the power to receive ambassadors, the duty to execute faithfully the laws, and the others.

The other participant in the debate, the party of those who interpret law in the manner of john marshall, read the vesting clause of Article II as a grant to the President of a broad and independent range of authority to be defined historically and by the necessities of circumstance, and not limited to the powers and duties mentioned in the text. For this party, "the executive power" includes not only implied powers, but also the prerogative and emergency powers of the British Crown unless limited or denied to the President by the Constitution.

The issue has long since been settled by usage and by decisions of the Supreme Court in cases such as ex parte milligan, In re Neagle (1890), and in re debs (1895), but it continues to enjoy a half-life in the literature of the Constitution.

In his perceptive study, The Creation of the Presidency, 1775–1789, C. C. Thach, Jr. concludes that Article II admits "an interpretation of executive power which would give to the President a field of action much wider than that outlined by the enumerated powers." Thach has no doubt that this consequence of the text was contemplated and intended because the dominant force governing the constitutional convention of 1787 was not the theories of montesquieu and william blackstone, popular as they were, but the experience of the state and the national governments between 1776 and 1787. To the majority of the founding fathers, led by james wilson, john jay, james madison, and gouverneur morris, the lesson of this experience was the danger of unbridled legislative power and the necessity for a strong and accountable national executive "to counterbalance legislative predominance. Neither theorist nor foreign model was needed to demonstrate that fact. The state legislatures' excesses and the incompetency of Congress as an administrative body produced the presidency." This is why Article I, section 6, forbids any member of Congress from holding an executive office during his or her term and why the Convention rejected several proposals that would have diluted the unity of the presidency or subordinated the office to a congressional committee.

Thach's judgment has been vindicated by the ebb and flow of history, despite the survival of a minority view favoring congressional supremacy. Upheavals of public opinion like those of the later stages of the vietnam war and the watergate scandal caused the pendulum to swing more violently than usual in the direction of congressional power, but—thus far, at any rate—James Wilson's conception of the presidency has recovered from the vehemence of periodic congressional attacks and prevails in public opinion, governmental practice, and constitutional law.

The reasons for this pattern are simple, but fundamental: they correspond to functional necessity. Congress cannot conduct the day-to-day business of a vast government, the central task of the executive power. The size, history, and habits of Congress make it an admirable legislative body, but for these reasons also make it impossible for Congress, even through committees and committee staff, to constitute the operational arm of a government capable of "energy, secrecy, and dispatch."

It is equally apparent that no American President can preempt the legislative power and rule by decree, at least not for long. It is not always easy to discover at what point in the process of government a statute is constitutionally necessary. But as a matter of principle, there is a boundary between the legislative and executive functions, no matter how difficult it sometimes is to draw. As a matter not only of legal obligation, but of institutional resistance, every President is forced sooner or later to respect the limits of the tripartite system of government, sanctioned as it is by the conviction that "there can be no liberty" in a society where the executive and legislative functions are combined and where the judiciary is not separated from both the other branches.

Congress had to consider the indispensable elasticity of these concepts when it met for the first time in 1789. In considering a statute to establish the first three departments of the government, Congress faced the question as to whether it was constitutionally required to give the President the power to remove heads of the departments or whether the President had that power under Article ii, with or without a statute. the constitution made it clear that only the president could nominate these officers, but could not appoint them without the advice and consent of the senate. Congress could provide other procedures for "inferior" officers or officers to be appointed by the courts. Were the new cabinet ministers to serve at the President's pleasure or was impeachment required to remove them? Could the President remove them only with the advice and consent of the Senate? Could the Senate or Congress as a whole remove them on its own motion, whatever the President thought?

Madison led the extended debate on the bill in the house of representatives, and in the end, Congress decided to say nothing on the subject, but to leave the outcome to practice and to the courts. Madison contended that the officers should be deemed to serve at the President's pleasure. The principal reason he offered for discovering an "implied" power of removal in Article II was that the President could not be expected faithfully to execute the laws if he were not given a free hand to dismiss his chief subordinates; neither the Senate nor Congress as a whole should have a binding vote in the conduct of the administrative business of the government, save through legislation. It followed, Madison concluded, that the President alone was responsible and accountable for the removal of officials.

Madison's position on the constitutional basis of the President's removal power was tested in a famous episode. During the passionate battles between President andrew johnson and Congress over policy in the military occupation of the South, Congress passed the tenure of office act, providing that certain heads of departments could serve until their successors were qualified. The provision was designed by Congress to prevent Johnson from dismissing Secretary of War edwin m. stanton, who was in charge of the military occupation of the South. Stanton was removed by Johnson, however, and the House of Representatives proceeded to impeach the President, largely for violating the statute. The President, of course, was acquitted by the Senate. Some sixty years later, the Supreme Court declared the Tenure of Office Act unconstitutional in myers v. united states (1926).

To confirm that the authority of a President to remove a member of his cabinet is an integral part of "the" executive power was hardly the end of the story. The Myers case did not concern the removal of a cabinet member, but of a postmaster. At the present stage in the evolution of the law on the subject, it can be said that the President's "absolute" power to remove federal officials is clear only for those of senior political responsibility whose appointments have been confirmed by the Senate. In contrast, military officers and foreign-service officers receive their commissions from the President after a senatorial vote of consent, but can only be discharged after compliance with statutory procedures for assuring them justice. For officials below the political level, Congress can qualify or abolish the President's removal power by passing civil-service legislation or by other means and direct the appointment of members of boards, commissions, and independent agencies for fixed terms. However, the Supreme Court has held in rutan v. republican party of illinois (1990) that the first amendment prevents state governors from discriminating among lower-level state officials on political grounds with regard to promotions, dismissals, and other aspects of employment. This line of cases surely applies also to the national government.

The same pattern of adjustment and accommodation between President and Congress is manifest in other lines of decisions that distinguish between the executive and the legislative functions—those on pardons, for example. This Encyclopedia considers the relations of Congress and the President in the field of foreign affairs in a number of articles, so this phase of the problem will not be addressed here. This article will, however, recall the ways in which the President and Congress share powers with respect to the important subject of appropriations.

It is often said that Congress has exclusive authority over the national purse because of the provisions in Article I, section 9, that "no money shall be drawn from the Treasury but in Consequence of appropriations made by law," and in Article I, section 7, that all money bills must originate in the House of Representatives. From the beginning, however, questions have arisen about the import of these words. The questions were raised with new intensity by the controversy over President ronald reagan's handling of the iran-contra affair.

Does the word "law" in the phrase "appropriations made by law" mean only statutory law, or does it include the President's actions pursuant to his prerogative and emergency powers under the Constitution as well? President Washington spent unappropriated funds to put down the whiskey rebellion, and abraham lincoln spent two million dollars in unappropriated funds for war material during the early months of the civil war, while Congress was not in session. President woodrow wilson and a number of other Presidents have taken comparable actions.

Article I, section 9, prohibits the spending of unappropriated funds. Does it therefore by implication allow the President not to spend funds, even when they have been appropriated? When the Armistice in Europe was signed in 1945, could President harry s. truman cancel military procurement contracts? The practice of presidential impoundment of funds already appropriated goes back at least to President thomas jefferson. On rare occasion, Presidents have relied on their inherent constitutional powers both to spend funds without benefit of statutory authority and not to make expenditures that had been authorized by statute.

Such acts have been treated as presenting a special constitutional problem fraught with overtones of tyranny. In situations of this kind, it has been normal practice for Presidents to report such expenditures or decisions not to spend to Congress, often with a request that Congress join its authority to that of the President by approving the action already taken. While some conclude that President Lincoln acted unconstitutionally in spending two million dollars of unappropriated funds in 1861 for the purpose of resisting the Confederacy, this author is of the opinion that Lincoln was legally correct in characterizing his action as constitutional.

The existence of an emergency does not suspend the Constitution; it merely changes the state of facts to which the law must be applied. As a matter of international law and constitutional law alike, the government of the United States possesses all the powers it requires to function in the society of nations. Like every other constitution, the Constitution of the United States contemplates the possibility of emergencies and makes provision for dealing with them. When Presidents invoke their emergency powers, they are acting under the Constitution, not beyond its limits, regardless of whether they are right or wrong in judging the scope of their powers. There is no other way for them to act. The general constitutional norms of reasonableness apply to the field of emergency actions as they do to other exercises of executive (and legislative) authority. In scrutinizing actions taken by the executive in the name of emergency, however, Congress, the courts, and the people may conclude that what the President did was justifiable as going no further than was reasonably necessary to carry out the President's constitutional responsibility under the circumstances.

Even if Lincoln could have assembled Congress in emergency session in the spring of 1861, his political judgment that such a session would have been impolitic, to say the least, was an important part of this constitutional responsibility. In defending Washington's unorthodox method of financing the suppression of the Whiskey Rebellion, alexander hamilton spoke of a presidential prerogative to make temporary "advances" against future congressional appropriations. This is a possible approach to the constitutional problem; it is analytically more precise, however, to treat such presidential actions as exercises of an autonomous presidential power. Congress may approve after the event, as frequently happens when Presidents use the national force on their own authority. The prize cases (1863). But the President's action meets the standard of Article I, section 9, whether Congress approves or not.

Involving the claim of emergency, however, by no means justifies every decision the President (or Congress) takes to resolve it, as shown in Ex Parte Milligan (1866). In the context of the Constitution as a whole and considering the possibilities of abuse, the President's power to spend unappropriated funds should be confined to the minimum necessary for the purpose.

During the administration of richard m. nixon, a major controversy between Congress and the presidency developed about the existence and the extent of the President's power not to spend appropriated funds. The controversy resulted in the congressional budget and impoundment act of 1974. This statute distinguishes between appropriations that authorize expenditures and those that mandate them. In the first category, the Act acknowledges a power in the President to sequester appropriated funds for a limited period, giving Congress time to reconsider its prior decision. Where an appropriation is mandatory, however, the President is required to carry it out.

These problems in determining the respective role of the legislature and the executive in spending public funds, important as they are, do not address the principal constitutional issues raised by the growing tendency of Congress to use riders on appropriation bills, legislative vetoes, standing congressional oversight committees, and other legislative methods as devices for taking executive powers unto itself. The pracitce of "tacking foreign matter to money bills" was familiar to the Constitutional Convention and has been familiar ever since, both in money bills and more generally. No constitutional way to protect the President's veto by requiring Congress to enforce a rule of "germaneness"—that is, a rule that would confine each act to one subject—has yet been developed. Two approaches to the problem are currently being discussed: the line item veto and a more vigorous judicial development of the Supreme Court's analysis and conclusions in cases like Springer v. Government of the Philippine Islands (1928), immigration and naturalization service v. chadha (1983), bowsher v. synar (1986), and Commodity Future Trading Commission v. Schor (1986), all of which recognize the importance of enforcing the constitutional distinction between legislative and executive power, whatever form the encroachment may take. There has been some support for the novel argument that a constitutional basis for the item veto already exists and should be declared by the Supreme Court rather than by constitutional amendment. Whether or not so radical a step is taken, however, it is to be expected that the Court will pursue the initiative it took in Chadha and Bowsher.

Eugene V. Rostow
(1992)