The Constitution of the United States of America: Analysis and Interpretation Part 85

Chief Justice Vinson launched his opinion of dissent, for himself and Justices Reed and Minton, with a survey of the elements of the emergency which confronted the President: the Korean war; the obligations of the United States under the United Nations Charter and the Atlantic Pact; the appropriations acts by which Congress has voted vast sums to be expended in our defense and that of our Allies in Europe; the fact that steel is a basic const.i.tuent of war materiel. He reproaches the Court for giving no consideration to these things, although no one had ventured to challenge the President's finding of an emergency on the basis of them.[464] He asks whether the steel seizure, considering the emergency involved, fits into the picture of presidential emergency action in the past and musters impressive evidence to show that it does.

And "plaintiffs admit," he a.s.serts, more questionably, "that the emergency procedures of Taft-Hartley are not mandatory."[465] He concludes as follows: "The diversity of views expressed in the six opinions of the majority, the lack of reference to authoritative precedent, the repeated reliance upon prior dissenting opinions, the complete disregard of the uncontroverted facts showing the gravity of the emergency and the temporary nature of the taking all serve to demonstrate how far afield one must go to affirm the order of the District Court. The broad executive power granted by Article II to an officer on duty 365 days a year cannot, it is said, be invoked to avert disaster. Instead, the President, must confine himself to sending a message to Congress recommending action. Under this messenger-boy concept of the Office, the President cannot even act to preserve legislative programs from destruction so that Congress will have something left to act upon. There is no judicial finding that the executive action was unwarranted because there was in fact no basis for the President's finding of the existence of an emergency for, under this view, the gravity of the emergency and the immediacy of the threatened disaster are considered irrelevant as a matter of law."[466]

Evaluation; Presidential Emergency Power

The doctrine of "the opinion of the Court" is that, if Congress can do it under, say, the necessary and proper clause, then the President, lacking authority from Congress, cannot do it on the justification that an emergency requires it. Although four Justices are recorded as concurring in the opinion, their accompanying opinions whittle their concurrence in some instances to the vanis.h.i.+ng point. Justice Douglas's supplementary argument on the basis of Amendment V logically confines the doctrine of the opinion to executive seizures of property. Justices Frankfurter and Burton and, less clearly, Justice Jackson insist in effect that Congress had exercised its power in the premises of the case in opposition to seizure. Justice Clark, on the basis of Chief Justice Marshall's opinion in Little _v._ Barreme, holds unambiguously that, Congress having entered the field, its evident intention to rule out seizures supplied the law of the case. That the President does possess a residual of resultant power above, or in consequence of, his granted powers to deal with emergencies in the absence of restrictive legislation is explicitly a.s.serted by Justice Clark, and impliedly held, with certain qualifications, by Justice Frankfurter and, again less clearly, by Justice Jackson; and is the essence of the position of the three dissenting Justices. Finally, the entire Court would in all probability agree to the proposition that any action of the President touching the internal economy of the country for which the justification of emergency is pleaded is always subject to revision and disallowance by the legislative power. It would seem to follow that whenever the President so acts on his own initiative he should at once report his action to Congress, and thenceforth bring the full powers of his office to the support of the desires of the Houses once these are clearly indicated.

PRESIDENTIAL IMMUNITY FROM JUDICIAL DIRECTION

By the decision of the Court in State of Mississippi _v._ Johnson,[467]

in 1867, the President was put beyond the reach of judicial direction in the exercise of any of his powers, whether const.i.tutional or statutory, political or otherwise. An application for an injunction to forbid President Johnson to enforce the Reconstruction Acts, on the ground of their unconst.i.tutionality, was answered by Attorney General Stanbery as follows: "It is not upon any peculiar immunity that the individual has who happens to be President; upon any idea that he cannot do wrong; upon any idea that there is any particular sanct.i.ty belonging to him as an individual, as is the case with one who has royal blood in his veins; but it is on account of the office that he holds that I say the President of the United States is above the process of any court or the jurisdiction of any court to bring him to account as President. There is only one court or _quasi_ court that he can be called upon to answer to for any dereliction of duty, for doing anything that is contrary to law or failing to do anything which is according to law, and that is not this tribunal but one that sits in another chamber of this Capitol."[468] Speaking by Chief Justice Chase, the Court agreed: "The Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance. The impropriety of such interference will be clearly seen upon consideration of its possible consequences. Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to observe that the court is without power to enforce its process. If, on the other hand, the President complies with the order of the court and refuses to execute the acts of Congress, is it not clear that a collision may occur between the executive and legislative departments of the government? May not the House of Representatives impeach the President for such refusal?

And in that case could this court interfere, in behalf of the President, thus endangered by compliance with its mandate, and restrain by injunction the Senate of the United States from sitting as a court of impeachment? Would [not?] the strange spectacle be offered to the public world of an attempt by this court to arrest proceedings in that court?"[469] The Court further indicated that the same principle would apply to an application for a mandamus ordering the President to exercise any of his powers.

THE PRESIDENT'S SUBORDINATES AND THE COURTS

But while the courts are unable to compel the President to act or to keep him from acting, yet his acts, when performed are in proper cases subject to judicial review and disallowance.[470] Moreover, the subordinates through whom he acts may always be prohibited by writ of injunction from doing a threatened illegal act which might lead to irreparable damage,[471] or be compelled by writ of mandamus to perform a duty definitely required by law,[472] such suits being usually brought in the United States District Court for the District of Columbia.[473]

Also, by common law principles, a subordinate executive officer is personally liable under the ordinary law for any act done in excess of authority.[474] Indeed, by a recent holding, district courts of the United States are bound to entertain suits for damages arising out of alleged violation of plaintiff's const.i.tutional rights, even though as the law now stands the Court is powerless to award damages.[475] But Congress may, in certain cases, exonerate the officer by a so-called act of indemnity,[476] while as the law stands at present, any officer of the United States who is charged with a crime under the laws of a State for an act done under the authority of the United States is ent.i.tled to have his case transferred to the national courts.[477]

Section 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Impeachment

"CIVIL OFFICER"

A Member of Congress is not a civil officer within the meaning of this section; nor is a private citizen subject to impeachment;[478] but resignation of an officer does not give immunity from impeachment for acts committed while in office.[479]

"HIGH CRIMES AND MISDEMEANORS"

Most of the States have drafted their const.i.tutional provisions on this subject in similar language. As there is no enumeration of offenses comprised under the last two categories, no little difficulty has been experienced in defining offenses in such a way that they fall within the meaning of the const.i.tutional provisions. But impeachable offenses were not defined in England, and it was not the intention that the Const.i.tution should attempt an enumeration of crimes or offenses for which an impeachment would lie. Treason and bribery have always been offenses whose nature was clearly understood. Other high crimes and misdemeanors which might be made causes for the impeachment of civil officers were those which embraced any misbehavior while in office.

Madison, whose objection led to the insertion of the more definite phrase high crimes and misdemeanors, was the strongest advocate of a broad construction of the impeachment power. He argued that incapacity, negligence, or perfidy of the Chief Magistrate should be ground for impeachment.[480] Again, in discussing the President's power of removal, he maintained that the wanton removal from office of meritorious officers would be an act of maladministration, and would render the President liable to impeachment.[481] Hamilton thought the proceeding could "never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of the courts in favor of personal security."[482]

THE CHASE IMPEACHMENT

The above relatively flexible conception of "high crimes and misdemeanors" was, however, early replaced by a much more rigid one in consequence of Jefferson's efforts to diminish the importance of the Supreme Court, the first step in which enterprise was the impeachment in 1805 of Justice Samuel Chase. The theory of Chase's enemies was given its extremest expression by Jefferson's henchman, Senator Giles of Virginia, as follows: "Impeachment is nothing more than an enquiry, by the two Houses of Congress, whether the office of any public man might not be better filled by another. * * * The power of impeachment was given without limitation to the House of Representatives; and the power of trying impeachments was given equally without limitation to the Senate; * * * A trial and removal of a judge upon impeachment need not imply any criminality or corruption in him. * * * [but] was nothing more than a declaration of Congress to this effect: You hold dangerous opinions, and if you are suffered to carry them into effect you will work the destruction of the nation. _We want your offices_, for the purpose of giving them to men who will fill them better."[483] To this theory Chase's counsel opposed the proposition that "high crimes and misdemeanors" meant offenses indictable at common law; and Chase's acquittal went far to affix this reading to the phrase till after the War between the States.

THE JOHNSON IMPEACHMENT

But with the impeachment of President Johnson in 1867 for "high crimes and misdemeanors," the controversy was revived. Representative Bingham, leader of the House Managers of the impeachment, defined an impeachable offense as follows: "An impeachable high crime or misdemeanor is one in its nature or consequences subversive of some fundamental or essential principle of government or highly prejudicial to the public interest, and this may consist of a violation of the Const.i.tution, of law, of an official oath, or of duty, by an act committed or omitted, or, without violating a positive law, by the abuse of discretionary powers from improper motives or for an improper purpose."[484] Former Justice Benjamin R. Curtis stated the position of the defense in these words: "My first position is, that when the Const.i.tution speaks of 'treason, bribery, and other high crimes and misdemeanors,' it refers to, and includes only, high criminal offences against the United States, made so by some law of the United States existing when the acts complained of were done, and I say that this is plainly to be inferred from each and every provision of the Const.i.tution on the subject of impeachment."[485]

LATER IMPEACHMENTS

With Johnson's acquittal, the narrow view of "high crimes and misdemeanors" appeared again to win out. Two successful impeachments of lower federal judges in recent years have, however, restored something like the broader conception of the term which Madison and Hamilton had endorsed. In 1913 Judge Archbald of the Commerce Court was removed from office by the impeachment process, and disqualified to hold and enjoy any office of honor, profit or trust under the Const.i.tution, for soliciting for himself and friends valuable favors from railroad companies some of which were at the time litigants in his court, although it was conceded that in so doing he had not committed an indictable offense;[486] and in 1936 Judge Ritter of the Florida district court was similarly removed for conduct in relation to a receivers.h.i.+p case which evoked serious doubts as to his integrity, although on the specific charges against him he was acquitted.[487] It is probable that in both these instances the final result was influenced by the consideration that judges of the United States hold office during "good behavior" and that the impeachment process is the only method indicated by the Const.i.tution for determining whether a judge's behavior has been "good." In other words, as to judges of the United States at least lack of "good behavior" and "high crimes and misdemeanors" are overlapping if not precisely coincidental concepts.[488]

Notes

[1] As is pointed out by Hamilton in The Federalist No. 69.

[2] Charles C. Thach, The Creation of the Presidency, 1775-1789 (Baltimore, 1922), 36-37.

[3] Ibid. 109.

[4] Max Farrand, Records, II, 185.

[5] Ibid. II, 572 (September 10), 597.

[6] Annals of Congress 383 ff.

[7] Ibid. 396-397; 481-482. For a thorough-going review and evaluation of this debate, _see_ James Hart, The American Presidency in Action, 152-214 (New York, 1948).

[8] Works of Alexander Hamilton, VII, 76, 80-81 (J.C. Hamilton, ed., New York, 1851). Hamilton was here simply interpreting the executive power clause in light of the views of Blackstone, Locke, and Montesquieu as to the location of power in the conduct of foreign relations. _See_ Edward S. Corwin, The President, Office and Powers (3d ed.), 459-460. For a parallel argument to Hamilton's respecting "the judicial power of the United States," article 1, section 1, clause 1, _see_ Justice Brewer's opinion in Kansas _v._ Colorado, 206 U.S. 46, 82 (1907).

[9] Myers _v._ United States, 272 U.S. 52 (1926).

[10] Ibid. 118.

[11] 299 U.S. 304 (1936).

[12] Ibid. 315-316, 318. _See also_ Ibid. 319 citing U.S. Senate Reports, Committee on Foreign Relations, vol. 8, p. 24 (February 15, 1816).

[13] Ibid. 327, citing Panama Refining Co. _v._ Ryan, 293 U.S. 388, 421-422 (1935).

[14] In Youngstown Co. _v._ Sawyer, 343 U.S. 579 (1952) the doctrine is advanced that the President has no power in the field of Congress'

legislative powers except such as are delegated him by Congress. This doctrine is considered below in the light of previous practice and adjudication. _See_ pp. 489-499.

[15] _See_ e.g., Abel Upshur, A Brief Inquiry Into the True Nature and Character of Our Federal Government (1840), 116-117.

[16] The Federalist No. 67, 503.

[17] James Hart, The American Presidency in Action (New York, 1918), 28-43.

[18] 2 Dall. 400 (1790).

[19] Messages and Papers of the Presidents, I, 56.

[20] Corwin, The President, Office and Powers (3d ed.), 377-378, 434-435, 446, 465, 484. "The executive [branch of the government], possessing the rights of self-government from nature, cannot be controlled in the exercise of them but by a law, pa.s.sed in the forms of the Const.i.tution." Thomas Jefferson, Official Opinion (1790) 5 Ford, ed.

209 (New York, 1892-1899). "In times of peace the people look most to their representatives; but in war, to the Executive solely." Letter to Caesar A. Rodney, (1810) Monticello, 9 Ford, ed. 272.

[21] Corwin 20-21, and citations.