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The Myers Case.—However much the two arguments are still subject to dispute, Chief Justice Taft, himself a former President, appears in Myers v. United States22 to have carried a majority of the Court with him in establishing the Hamiltonian conception as official doctrine. That case confirmed one reading of the “Decision of 1789” in holding the removal power to be constitutionally vested in the President.23 But its importance here lies in its interpretation of the first section of Article II. That language was read, with extensive quotation from Hamilton and from Madison on the removal power, as vesting all executive power in the President, the subsequent language was read as merely particularizing some of this power, and consequently the powers vested in Congress were read as exceptions which must be strictly construed in favor of powers retained by the President.24 Myers remains the fountainhead of the latitudinarian constructionists of presidential power, but its dicta, with regard to the removal power, were first circumscribed in Humphrey’s Executor v. United States,25 and then considerably altered in Morrison v. Olson;26 with regard to the President’s “inherent” powers, the Myers dicta were called into considerable question by Youngstown Sheet & Tube Co. v. Sawyer.27

The Curtiss–Wright Case.—Further Court support of the Hamiltonian view was advanced in United States v. Curtiss–Wright Export Corp.,28 in which Justice Sutherland posited the doctrine that the power of the National Government in foreign relations is not one of enumerated but of inherent powers;29 this doctrine was[p.419]then combined with Hamilton’s contention that control of foreign relations is exclusively an executive function with obvious implications for the power of the President. The case arose as a challenge to the delegation of power from Congress to the President with regard to a foreign relations matter. Justice Sutherland denied that the limitations on delegation in the domestic field were at all relevant in foreign affairs. “The broad statement that the federal government can exercise no powers except those specifically enumerated in the constitution, and such implied powers—as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs. In that field the primary purpose of the Constitution was to carve from the general mass of legislative powers then possessed by the states such portions as were thought desirable to vest in the federal government, leaving those not included in the enumeration still in the states. . . . That this doctrine applies only to powers which the states had, is self evident. And since the states severally never possessed international powers, such powers could not have been carved from the mass of state powers but obviously were transmitted to the United States from some other source. . . .

“As a result of the separation from Great Britain by the colonies acting as a unit, the powers of external sovereignty passed from the Crown not to the colonies severally, but to the colonies in their collective and corporate capacity as the United States of America. . . .

“It results that the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties if they had never been mentioned in the Constitution, would have been vested in the federal government as necessary concomitants of nationality. . . .

“Not only . . . is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of power is significantly limited. In this vast external realm with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation . . . .”30

Scholarly criticism of Justice Sutherland’s reasoning has demonstrated that his essential postulate, the passing of sovereignty in external affairs directly from the British Crown to the colonies as[p.420]a collective unit, is in error.31 Dicta in later cases controvert the conclusions drawn in Curtiss–Wright about the foreign relations power being inherent rather than subject to the limitations of the delegated powers doctrine.32 The holding in Kent v. Dulles33 that delegation to the Executive of discretion in the issuance of passports must be measured by the usual standards applied in domestic delegations appeared to circumscribe, Justice Sutherland’s more expansive view, but the subsequent limitation of that decision, though formally reasoned within its analytical framework, coupled with language addressed to the President’s authority in foreign affairs, leaves clouded the vitality of that decision.34 The case nonetheless remains with Myers v. United States the source and support of those contending for broad inherent executive powers.35

The Youngstown Case.—The only recent case in which the “inherent” powers of the President or the issue of what executive powers are vested by the first section of Article II has been exten[p.421]sively considered36 is Youngstown Sheet & Tube Co. v. Sawyer,37 and the multiple opinions there produced make difficult an evaluation of the matter. During the Korean War, President Truman seized the steel industry then in the throes of a strike. No statute authorized the seizure, and the Solicitor General defended the action as an exercise of the President’s executive powers which were conveyed by the first section of Article II, by the obligation to enforce the laws, and by the vesting of the function of commander–in–chief. Six–to–three the Court rejected this argument and held the seizure void. But the doctrinal problem is complicated by the fact that Congress had expressly rejected seizure proposals in considering labor legislation and had authorized procedures not followed by the President which did not include seizure. Thus, four of the majority Justices38 appear to have been decisively influenced by the fact that Congress had denied the power claimed and this in an area in which the Constitution vested the power to decide at least concurrently if not exclusively in Congress. Three and perhaps four Justices39 appear to have rejected the Government’s argument on the merits while three40 accepted it in large measure. Despite the inconclusiveness of the opinions, it seems clear that the result was[p.422]a substantial retreat from the proclamation of vast presidential powers made in Myers and Curtiss–Wright.41


Footnotes

22 272 U.S. 52 (1926). See Corwin, The President’s Removal Power Under the Constitution, in 4 Selected Essays on Constitutional Law (Chicago: 1938), 1467.
23 C. Thach, The Creation of the Presidency 1775–1789 (Baltimore: 1923), ch. 6.
24 Myers v. United States, 272 U.S. 52, 163–164 (1926). Professor Taft had held different views. “The true view of the executive functions is, as I conceive it, that the president can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary in its exercise. Such specific grant must be either in the federal constitution or in an act of congress passed in pursuance thereof. There is no undefined residuum of power which he can exercise because it seems to him to be in the public interest. . . .” W. Taft, Our Chief Magistrate and His Powers (New York: 1916), 139–140.
25 295 U.S. 602 (1935).
26 487 U.S. 654, 685–693 (1988).
27 343 U.S. 579 (1952).
28 299 U.S. 304 (1936).
29 Id., 315–316, 318.
30 Ibid.
31 Levitan, The Foreign Relations Power: An Analysis of Mr. Justice Sutherland’s Theory, 55 L. J.467 (1946); Patterson, In re United States v. Curtiss–Wright Corp., 22 L. Rev.286,445 (1944); Lofgren, United States v. Curtiss–Wright Corporation: An Historical Reassessment, 83 L. J.1 (1973), reprinted in C. Lofgren, “Government from Reflection and Choice”—Constitutional Essays on War, Foreign Relations, and Federalism (1986), 167.
32 E.g., Ex parte Quirin, 317 U.S. 1, 25 (1942) (Chief Justice Stone); Reid v. Covert, 354 U.S. 1, 5–6 (1957) (plurality opinion, per Justice Black).
33 357 U.S. 116, 129 (1958).
34 Haig v. Agee, 453 U.S. 280 (1981). For the reliance on Curtiss–Wright, see id., 291, 293–294 & n. 24, 307–308. But see Dames & Moore v. Regan, 453 U.S. 654, 659–662 (1981), qualified by id., 678. Compare Webster v. Doe, 486 U.S. 592 (1988) (construing National Security Act as not precluding judicial review of constitutional challenges to CIA Director’s dismissal of employee, over dissent relying in part on Curtiss–Wright as interpretive force counseling denial of judicial review), with Department of the Navy v. Egan, 484 518 (1988) (denying Merit Systems Protection Board authority to review the substance of an underlying security–clearance determination in reviewing an adverse action and noticing favorably President’s inherent power to protect information without any explicit legislative grant).

Supplement: [P. 420, add to n.34:]

In Loving v. United States, 517 U.S. 748 (1996) , the Court recurred to the original setting of Curtiss–Wright, a delegation to the President without standards. Congress, the Court found, had delegated to the President authority to structure the death penalty provisions of military law so as to bring the procedures, relating to aggravating and mitigating factors, into line with constitutional requirements, but Congress had provided no standards to guide the presidential exercise of the authority. Standards were not required, held the Court, because the President’s role as Commander–in–Chief gave him responsibility to superintend the military establishment and Congress and the President had interlinked authorities with respect to the military. Where the entity exercising the delegated authority itself possesses independent authority over the subject matter, the familiar limitations on delegation do not apply. Id. at 771–74.

35 That the opinion “remains authoritative doctrine” is stated in L. Henkin, Foreign Affairs and the Constitution (1972), 25–26. It is utilized as an interpretive precedent in American Law Institute, Restatement (Third) of the Law, The Foreign Relations Law of the United States (1987), see, e.g., §§ 1, 204, 339. It will be noted, however, that the Restatement is circumspect about the reach of the opinion in controversies between presidential and congressional powers.
36 The issue is implicit in several of the opinions of the Justices in New York Times Co. v. United States, 403 U.S. 713 (1971). See id., 727, 728–730 (Justice Stewart concurring), 752, 756–759 (Justice Harlan dissenting). Assertions of inherent power to sustain presidential action were made in Dames & Moore v. Regan, 453 U.S. 654 (1981), but the Court studiously avoided these arguments in favor of a somewhat facile statutory analysis. Separation–of–powers analysis informed the Court’s decisions in United States v. Nixon, 418 U.S. 683 (1974), Nixon v. Administrator of General Services, 433 U.S. 425 (1977), Nixon v. Fitzgerald, 457 U.S. 731 (1982), and Harlow v. Fitzgerald, 457 U.S. 800 (1982). While perhaps somewhat latitudinarian in some respect of the President’s powers, the analysis looks away from inherent powers. But see Haig v. Agee, 453 U.S. 280 (1981), in which the statutory and congressional ratification analyses is informed with a view of a range of presidential foreign affairs discretion combined with judicial deference according the President de facto much of the theoretically– based authority spelled out in Curtiss–Wright.
37 343 U.S. 579 (1952). See Corwin, The Steel Seizure Case: A Judicial Brick Without Straw, 53 Colum. L. Rev. 53 (1953). A case similar to Youngstown was AFL–CIO v. Kahn, 618 F.2d 784 (D.C.Cir.) (en banc), cert. den., 443 U.S. 915 (1979), sustaining a presidential order denying government contracts to companies failing to comply with certain voluntary wage and price guidelines on the basis of statutory interpretation of certain congressional delegations.
38 343 U.S. 593, 597–602 (Justice Frankfurter concurring, though he also noted he expressly joined Justice Black’s opinion as well), 634, 635–640 (Justice Jackson concurring), 655, 657 (Justice Burton concurring), 660 (Justice Clark concurring).
39 Id., 582 (Justice Black delivering the opinion of the Court), 629 (Justice Douglas concurring, but note his use of the Fifth Amendment just compensation argument), 634 (Justice Jackson concurring), 655 (Justice Burton concurring).
40 Id., 667 (Chief Justice Vinson and Justices Reed and Minton dissenting).
41 Myers v. United States, 272 U.S. 52 (1926); United States v. Curtiss–Wright Export Corp., 299 U.S. 304 (1936). Note that in Dames & Moore v. Regan, 453 U.S. 654, 659–662, 668–669 (1981), the Court turned to Youngstown as embodying “much relevant analysis” on an issue of presidential power.
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