What power does the president use when he she rejects any act of Congress disallowing it from becoming a law?

Clause 2. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Court of Law, or in the Heads of Departments.

Annotations

—Save for the provision which it makes for a power of impeachment of “civil officers of the United States,” the Constitution contains no reference to a power to remove from office, and until its decision in Myers v. United States, on October 25, 1926, the Supreme Court had contrived to sidestep every occasion for a decisive pronouncement regarding the removal power, its extent, and location. The point immediately at issue in the Myers case was the effectiveness of an order of the Postmaster General, acting by direction of the President, to remove from office a first-class postmaster, in the face of the following provision of an act of Congress passed in 1876: “Postmasters of the first, second, and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate, and shall hold their offices for four years unless sooner removed or suspended according to law.”

A divided Court, speaking through Chief Justice Taft, held the order of removal valid and the statutory provision just quoted void. The Chief Justice’s relied mainly on the so-called “decision of 1789,” which referred to Congress’s that year inserting in the act establishing the Department of State a proviso that was meant to imply recognition that the Secretary would be removable by the President at will. The proviso was especially urged by Madison, who invoked in support of it the opening words of Article II and the President’s duty to “take Care that the Laws be faithfully executed.”

Succeeding passages of the Chief Justice’s opinion erected on this basis a highly selective account of doctrine and practice regarding the removal power down to the Civil War, which was held to yield the following results: “Article II grants to the President the executive power of the Government, i. e. , the general administrative control of those executing the laws, including the power of appointment and removal of executive officers—a conclusion confirmed by his obligation to take care that the laws be faithfully executed; that Article II excludes the exercise of legislative power by Congress to provide for appointments and removals, except only as granted therein to Congress in the matter of inferior offices; that Congress is only given power to provide for appointments and removals of inferior officers after it has vested, and on condition that it does vest, their appointment in other authority than the President with the Senate’s consent; that the provisions of the second section of Article II, which blend action by the legislative branch, or by part of it, in the work of the executive, are limitations to be strictly construed and not to be extended by implication; that the President’s power of removal is further established as an incident to his specifically enumerated function of appointment by and with the advice of the Senate, but that such incident does not by implication extend to removals the Senate’s power of checking appointments; and finally that to hold otherwise would make it impossible for the President, in case of political or other differences with the Senate or Congress, to take care that the laws be faithfully executed.”

The holding in Myers boils down to the proposition that the Constitution endows the President with an illimitable power to remove all officers in whose appointment he has participated, with the exception of federal judges. The motivation of the holding was not, it may be assumed, any ambition on the Chief Justice’s part to set history aright—or awry. Rather, it was the concern that he voiced in the following passage in his opinion: “There is nothing in the Constitution which permits a distinction between the removal of the head of a department or a bureau, when he discharges a political duty of the President or exercises his discretion, and the removal of executive officers engaged in the discharge of their other normal duties. The imperative reasons requiring an unrestricted power to remove the most important of his subordinates in their most important duties must, therefore, control the interpretation of the Constitution as to all appointed by him.”

Thus spoke the former President Taft, and the result of his prepossession was a rule that, as was immediately pointed out, exposed the so-called “independent agencies”—the Interstate Commerce Commission, the Federal Trade Commission, and the like—to presidential domination. Unfortunately, the Chief Justice, while professing to follow Madison’s leadership, had omitted to weigh properly the very important observation that the latter had made at the time regarding the office of Comptroller of the Treasury. “The Committee,” said Madison, “has gone through the bill without making any provision respecting the tenure by which the comptroller is to hold his office. I think it is a point worthy of consideration, and shall, therefore, submit a few observations upon it. It will be necessary to consider the nature of this office, to enable us to come to a right decision on the subject; in analyzing its properties, we shall easily discover they are of a judiciary quality as well as the executive; perhaps the latter obtains in the greatest degree. The principal duty seems to be deciding upon the lawfulness and justice of the claims and accounts subsisting between the United States and particular citizens: this partakes strongly of the judicial character, and there may be strong reasons why an officer of this kind should not hold his office at the pleasure of the executive branch of the government.” In Humphrey’s Executor v. United States, the Court seized upon “the nature of the office” concept and applied it as a corrective to the overbroad Myers holding.

—The material element of Humphrey’s Executor was that Humphrey, a member of the Federal Trade Commission, was on October 7, 1933, notified by President Roosevelt that he was “removed” from office, the reason being their divergent views of public policy. In due course, Humphrey sued for salary. Distinguishing the Myers case, Justice Sutherland, speaking for the unanimous Court, said: “A postmaster is an executive officer restricted to the performance of executive functions. He is charged with no duty at all related to either the legislative or judicial power. The actual decision in the Myers case finds support in the theory that such an office is merely one of the units in the executive department and, hence, inherently subject to the exclusive and illimitable power of removal by the Chief Executive, whose subordinate and aide he is. . . . It goes no farther; much less does it include an officer who occupies no place in the executive department and who exercises no part of the executive power vested by the Constitution in the President.”

“The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies embodied in the statute. . . . Such a body cannot in any proper sense be characterized as an arm or eye of the executive. Its duties are performed without executive leave and, in the contemplation of the statute, must be free from executive control. . . . We think it plain under the Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of those just named, [the Interstate Commerce Commission, the Federal Trade Commission, the Court of Claims]. The authority of Congress, in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted; and that authority includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime. For it is quite evident that one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter’s will. . . .”

“The result of what we now have said is this: Whether the power of the President to remove an officer shall prevail over the authority of Congress to condition the power by fixing a definite term and precluding a removal except for cause, will depend upon the character of the office; the Myers decision, affirming the power of the President alone to make the removal, is confined to purely executive officers; and as to officers of the kind here under consideration, we hold that no removal can be made during the prescribed term for which the officer is appointed, except for one or more of the causes named in the applicable statute.”

—Curtailment of the President’s power of removal, so liberally delineated in the Myers decision, was not to end with the Humphrey case. Unresolved by the latter was the question whether the President, absent a provision expressly delimiting his authority in the statute creating an agency endowed with quasi-judicial functions, remained competent to remove members serving thereon. To this query the Court supplied a negative answer in Wiener v. United States. Emphasizing that the duties of the War Claims Commission were wholly adjudicatory and its determinations, final and exempt from review by any other official or judicial body, the Court unanimously concluded that inasmuch as the President was unable to supervise its activities, he lacked the power, independently of statutory authorization, to remove a commissioner whose term expired with the life of that agency.

—A dispute arose regarding the discharge of the Special Prosecutor appointed to investigate and prosecute violations of law in the Watergate matter. Congress vested in the Attorney General the power to conduct the criminal litigation of the Federal Government, and it further authorized him to appoint subordinate officers to assist him in the discharge of his duties. Pursuant to presidential direction, the Attorney General designated a Watergate Special Prosecutor with broad power to investigate and prosecute offenses arising out of the Watergate break-in, the 1972 presidential election, and allegations involving the President, members of the White House staff, or presidential appointees. He was to remain in office until a date mutually agreed upon between the Attorney General and himself, and the regulations provided that the Special Prosecutor “will not be removed from his duties except for extraordinary improprieties on his part.” On October 20, following the resignations of the Attorney General and the Deputy Attorney General, the Solicitor General as Acting Attorney General formally dismissed the Special Prosecutor and three days later rescinded the regulation establishing the office. In subsequent litigation, a federal district court held that the firing by the Acting Attorney General had violated the regulations, which were in force at the time and which had to be followed until they were rescinded. The Supreme Court in United States v. Nixon seemed to confirm this analysis by the district court in upholding the authority of the new Special Prosecutor to take the President to court to obtain evidence in the President’s possession. Left unsettled were two questions, the power of the President himself to go over the heads of his subordinates and to fire the Special Prosecutor himself, whatever the regulations said, and the power of Congress to enact legislation establishing an Office of Special Prosecutor free from direction and control of the President. When Congress acted to create an office, first called the Special Prosecutor and then the Independent Counsel, resolution of the question became necessary.

—The tension that had long been noticed between Myers and Humphrey’s Executor, at least in terms of the language used in those cases but also to some extent in their holdings, appears to have been ameliorated by two decisions, which purport to reconcile the cases but, more important, purport to establish, in the latter case, a mode of analysis for resolving separation-of-powers disputes respecting the removal of persons appointed under the Appointments Clause. Myers actually struck down only a law involving the Senate in the removal of postmasters, but the broad-ranging opinion had long stood for the proposition that inherent in the President’s obligation to see to the faithful execution of the laws was his right to remove any executive officer as a means of discipline. Humphrey’s Executor had qualified this proposition by upholding “for cause” removal restrictions for members of independent regulatory agencies, at least in part on the assertion that they exercised “quasi-” legislative and adjudicative functions as well as some form of executive function. Maintaining the holding of the latter case was essential to retaining the independent agencies, but the emphasis upon the execution of the laws as a core executive function in recent cases had cast considerable doubt on the continuing validity of Humphrey’s Executor.

In Bowsher v. Synar, the Court held that when Congress itself retains the power to remove an official it could not vest him with the exercise of executive power. Invalidated in Synar were provisions of the 1985 “Gramm-Rudman-Hollings” Deficit Control Act vesting in the Comptroller General authority to prepare a detailed report on projected federal revenue and expenditures and to determine mandatory across-the-board cuts in federal expenditures necessary to reduce the projected budget deficit by statutory targets. By a 1921 statute, the Comptroller General was removable by joint congressional resolution for, inter alia, “inefficiency,” “neglect of duty,” or “malfeasance.” “These terms are very broad,” the Court noted, and “could sustain removal of a Comptroller General for any number of actual or perceived transgressions of the legislative will.” Consequently, the Court determined, “the removal powers over the Comptroller General’s office dictate that he will be subservient to Congress.”

Relying expressly upon Myers, the Court concluded that “Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment.” But Humphrey’s Executor was also cited with approval, and to the contention that invalidation of this law would cast doubt on the status of the independent agencies the Court rejoined that the statutory measure of the independence of those agencies was the assurance of “for cause” removal by the President rather than congressional involvement as in the instance of the Comptroller General. This reconciliation of Myers and Humphrey’s Executor was made clear and express in Morrison v. Olson.

That case sustained the independent counsel statute. Under that law, the independent counsel, appointed by a special court upon application by the Attorney General, may be removed by the Attorney General “only for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel’s duties.” Because the counsel was clearly exercising “purely” executive duties, in the sense that term was used in Myers, it was urged that Myers governed and required the invalidation of the statute. The Court, however, said that Myers stood only for the proposition that Congress could not involve itself in the removal of executive officers. Its broad dicta that the President must be able to remove at will officers performing “purely” executive functions had not survived Humphrey’s Executor.

It was true, the Court admitted, that, in the latter case, it had distinguished between “purely” executive officers and officers who exercise “quasi-legislative” and “quasi-judicial” powers in marking the line between officials who may be presidentially removed at will and officials who can be protected through some form of good cause removal limits. “[B]ut our present considered view is that the determination of whether the Constitution allows Congress to impose a ‘good cause’-type restriction on the President’s power to remove an official cannot be made to turn on whether or not that official is classified as ‘purely executive.’ The analysis contained in our removal cases is designed not to define rigid categories of those officials who may or may not be removed at will by the President, but to ensure that Congress does not interfere with the President’s exercise of the ‘executive power’ and his constitutionally appointed duty to ‘take care that the laws be faithfully executed’ under Article II. Myers was undoubtedly correct in its holding, and in its broader suggestion that there are some ‘purely executive’ officials who must be removable by the President at will if he is to be able to accomplish his constitutional role. . . . At the other end of the spectrum from Myers, the characterization of the agencies in Humphrey’s Executor and Wiener as ‘quasi-legislative’ or ‘quasi-judicial’ in large part reflected our judgment that it was not essential to the President’s proper execution of his Article II powers that these agencies be headed up by individuals who were removable at will. We do not mean to suggest that an analysis of the functions served by the officials at issue is irrelevant. But the real question is whether the removal restrictions are of such a nature that they impede the President’s ability to perform his constitutional duty, and the functions of the officials in question must be analyzed in that light.”

The Court discerned no compelling reason to find the good cause limit to interfere with the President’s performance of his duties. The independent counsel did exercise executive, law-enforcement functions, but the jurisdiction and tenure of each counsel were limited in scope and policymaking, or significant administrative authority was lacking. On the other hand, the removal authority did afford the President through the Attorney General power to ensure the “faithful execution” of the laws by assuring that the counsel is competently performing the statutory duties of the office.

It is now thus reaffirmed that Congress may not involve itself in the removal of officials performing executive functions. It is also established that, in creating offices in the executive branch and in creating independent agencies, Congress has considerable discretion in statutorily limiting the power to remove of the President or another appointing authority. It is evident on the face of the opinion that the discretion is not unbounded, that there are offices which may be essential to the President’s performance of his constitutionally assigned powers and duties, so that limits on removal would be impermissible. There are no bright lines marking off one office from the other, but decision requires close analysis.

As a result of these cases, the long-running controversy with respect to the legitimacy of the independent agencies appears to have been settled, although it appears likely that the controversies with respect to congressional-presidential assertions of power in executive agency matters are only beginning.

—In the case of inferior officers, Congress may “limit and restrict the power of removal as it deems best for the public interest,” and when Congress has vested the power to appoint these officers in heads of departments, it is ordinarily the department head, rather than the President, who enjoys the power of removal. However, in the case of Free Enterprise Fund v. Public Company Accounting Oversight Bd., the Court considered whether an inferior officer can be twice insulated from the President’s removal authority—in other words, can a principal officer whom Congress has protected from at will removal by the President in turn have his or her power to remove an inferior officer restricted? The Court held that such multilevel protection from removal is contrary to the President’s executive authority. First, even if the President determines that the inferior officer is neglecting his duties or discharging them improperly, the President does not have the power to remove that officer. Then, if the President seeks to have the principal officer remove the inferior officer, the principal officer may not agree with the President’s determination, and the President generally cannot remove the principal officer simply because of this disagreement.

In the absence of specific legislative provision to the contrary, the President may at his discretion remove an inferior officer whose term is limited by statute, or one appointed with the consent of the Senate. He may remove an officer of the army or navy at any time by nominating to the Senate the officer’s successor, provided the Senate approves the nomination. In 1940, the President was sustained in removing Dr. E. A. Morgan from the chairmanship of TVA for refusal to produce evidence in substantiation of charges which he had leveled at his fellow directors. Although no such cause of removal by the President was stated in the act creating TVA, the President’s action, being reasonably required to promote the smooth functioning of TVA, was held to be within his duty to “take Care that the Laws be faithfully executed.” So interpreted, the removal did not violate the principle of administrative independence.

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Clause 2. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Court of Law, or in the Heads of Departments.

Annotations

Presidents have more than once had occasion to stand in a protective relation to their subordinates, assuming their defense in litigation brought against them or pressing litigation in their behalf, refusing a congressional call for papers which might be used, in their absence from the seat of government, to their disadvantage, challenging the constitutional validity of legislation deemed detrimental to their interests. Presidents throughout our history have attempted to spread their own official immunity to their subordinates by resisting actions of the courts or of congressional committees to require subordinates to divulge communications from or to the President that Presidents choose to regard as confidential. Only recently, however, has the focus of the controversy shifted from protection of presidential or executive interests to protection of the President himself, and the locus of the dispute shifted to the courts.

Following years in which claims of executive privilege were resolved in primarily interbranch disputes on the basis of the political strengths of the parties, the issue finally became subject to judicial elaboration. The doctrine of executive privilege was at once recognized as existing and having a constitutional foundation while at the same time it was definitely bounded in its assertion by the principle of judicial review. Because of these cases, because of the intensified congressional-presidential dispute, and especially because of the introduction of the issue into an impeachment proceeding, a somewhat lengthy treatment of the doctrine is called for.

Conceptually, the doctrine of executive privilege may well reflect different considerations in different factual situations. Congress may seek information within the possession of the President, either in effectuation of its investigatory powers to oversee the conduct of officials of the Executive Branch or in effectuation of its power to impeach the President, Vice President, or civil officers of the Government. Private parties may seek information in the possession of the President either in civil litigation with the Government or in a criminal proceeding brought by government prosecutors. Generally, the categories of executive privilege have been the same whether it is Congress or a private individual seeking the information, but it is possible that the congressional assertion of need may overbalance the presidential claim to a greater degree than that of a private individual. The judicial precedents are so meager that it is not yet possible so to state, however.

The doctrine of executive privilege defines the authority of the President to withhold documents or information in his possession or in the possession of the executive branch from compulsory process of the legislative or judicial branch of the government. The Constitution does not expressly confer upon the Executive Branch any such privilege, but it has been claimed that the privilege derives from the constitutional provision of separation of powers and from a necessary and proper concept respecting the carrying out of the duties of the presidency imposed by the Constitution. Historically, assertion of the doctrine has been largely confined to the areas of foreign relations, military affairs, pending investigations, and intragovernmental discussions. During the Nixon Administration, the litigation involved, of course, the claim of confidentiality of conversations between the President and his aides.

—Private parties may seek to obtain information from the government either to assist in defense to criminal charges brought by the government or in civil cases to use in either a plaintiff’s or defendant’s capacity in suits with the government or between private parties. In criminal cases, a defendant is guaranteed compulsory process to obtain witnesses by the Sixth Amendment and by the due process clause is guaranteed access to relevant exculpatory information in the possession of the prosecution. Generally speaking, when the prosecution is confronted with a judicial order to turn over to a defendant information that it does not wish to make available, the prosecution has the option of dropping the prosecution and thus avoiding disclosure. But that alternative may not always be available; in the Watergate prosecution, only by revoking the authority of the Special Prosecutor and bringing the cases back into the confines of the Department of Justice could this possibility have been realized.

In civil cases the government may invoke the state secrets privilege against revealing military or other secrets. In United States v. Reynolds, a tort claim brought against the United States for compensation for the deaths of civilians in the crash of an Air Force plane testing secret electronics equipment, plaintiffs sought discovery of the Air Force’s investigation report on the accident, and the government resisted on a claim of privilege as to the nondisclosure of military secrets. The Court accepted the Government’s claim, holding that courts must determine whether under the circumstances the claim of privilege was appropriate without going so far as to force disclosure of the thing the privilege is designed to protect. The private litigant’s showing of necessity for the information should govern in each case how far the trial court should probe. Where the necessity is strong, the court should require a strong showing of the appropriateness of the privilege claim, but once the court is satisfied of the appropriateness the privilege must prevail no matter how compelling the need.

Reynolds dealt with an evidentiary privilege. There are other circumstances, however, in which cases must be “dismissed on the pleadings without ever reaching the question of evidence.” In holding that federal courts should refuse to entertain a breach of contract action seeking enforcement of an agreement to compensate someone who performed espionage services during the Civil War, the Court in Totten v. United States declared that “public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential.”

—Rarely will there be situations when federal prosecutors or grand juries seek information under the control of the President, since he has ultimate direction of federal prosecuting agencies, but the Watergate Special Prosecutor, being in a unique legal situation, was held able to take the President to court to enforce subpoenas for tape recordings of presidential conversations and other documents relating to the commission of criminal actions. While holding that the subpoenas were valid and should be obeyed, the Supreme Court recognized the constitutional status of executive privilege, insofar as the assertion of that privilege relates to presidential conversations and indirectly to other areas as well.

Presidential communications, the Court said, have “a presumptive privilege.” “The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution.” The operation of government is furthered by the protection accorded communications between high government officials and those who advise and assist them in the performance of their duties. “A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.” The separation of powers basis derives from the conferral upon each of the branches of the Federal Government of powers to be exercised by each of them in great measure independent of the other branches. The confidentiality of presidential conversations flows then from the effectuation of enumerated powers.

However, the Court continued, the privilege is not absolute. The federal courts have the power to construe and delineate claims arising under express and implied powers. Deference is owed the constitutional decisions of the other branches, but it is the function of the courts to exercise the judicial power, “to say what the law is.” The Judicial Branch has the obligation to do justice in criminal prosecutions, which involves the employment of an adversary system of criminal justice in which all the probative facts, save those clearly privileged, are to be made available. Thus, although the President’s claim of privilege is entitled to deference, the courts must balance two sets of interests when the claim depends solely on a broad, undifferentiated claim of confidentiality.

“In this case we must weigh the importance of the general privilege of confidentiality of presidential communications in performance of his responsibilities against the inroads of such a privilege on the fair administration of criminal justice. The interest in preserving confidentiality is weighty indeed and entitled to great respect. However we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution.”

“On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A President’s acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. . . .”

“We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.”

Obviously, United States v. Nixon left much unresolved. It did recognize the constitutional status of executive privilege as a doctrine. It did affirm the power of the courts to resolve disputes over claims of the privilege. But it left unsettled just how much power the courts have to review claims of privilege to protect what are claimed to be military, diplomatic, or sensitive national security secrets. It did not indicate what the status of the claim of confidentiality of conversations is when it is raised in civil cases, nor did it touch upon denial of information to Congress, or public disclosure of information.

The Court’s decision in Nixon v. Administrator of General Services did not elucidate any of these questions to any great degree. In upholding the Presidential Recordings and Materials Preservation Act, which directed the government to take custody of former President Nixon’s records so that they could be screened, catalogued, and processed by professional archivists in GSA, the Court viewed the assertion of privilege as directed only to the facial validity of the requirement of screening by executive branch professionals, and not at all related to the possible public disclosure of some of the records. The decision did recognize “adequate justifications” for enactment of the law, and termed them cumulatively “comparable” to those held to justify in camera inspection in United States v. Nixon. Congress’s purposes cited by the Court included the preservation of the materials for legitimate historical and governmental purposes, the rationalization of preservation and access to public needs as well as each President’s wishes, the preservation of the materials as a source for facilitating a full airing of the events leading to the former President’s resignation for public and congressional understanding, and preservation for the light shed upon issues in civil or criminal litigation. Although interestingly instructive, the decision may be so attuned to the narrow factual circumstances that led to the Act’s passage as to leave the case of little precedential value.

Public disclosure was at issue in 2004 when the Court weighed a claim of executive privilege asserted as a bar to discovery orders for information disclosing the identities of individuals who served on an energy task force chaired by the Vice President. Although the case was remanded on narrow technical grounds, the Court distinguished United States v. Nixon, and, in instructing the appeals court on how to proceed, emphasized the importance of confidentiality for advice tendered the President.

— Presidents and Congresses have engaged in protracted disputes over provision of information from the former to the latter, but the basic thing to know is that most congressional requests for information are complied with. The disputes, however, have been colorful and varied. The basic premise of the concept of executive privilege, as it is applied to resist requests for information from Congress as from private parties with or without the assistance of the courts, is found in the doctrine of separation of powers, the prerogative of each coequal branch to operate within its own sphere independent of control or direction of the other branches. In this context, the President then asserts that phase of the claim of privilege relevant to the moment, such as confidentiality of communications, protection of diplomatic and military secrets, or preservation of investigative records. Counterposed against this assertion of presidential privilege is the power of Congress to obtain information upon which to legislate, to oversee the carrying out of its legislation, to check and root out corruption and wrongdoing in the Executive Branch, involving both the legislating and appropriating function of Congress, and in the final analysis to impeach the President, the Vice President, and all civil officers of the Federal Government.

Until quite recently, all disputes between the President and Congress with regard to requests for information were settled in the political arena, with the result that few if any lasting precedents were created and only disputed claims were left to future argument. The Senate Select Committee on Presidential Campaign Activities, however, elected to seek a declaratory judgment in the courts with respect to the President’s obligations to obey its subpoenas. The Committee lost its case, but the courts based their rulings upon prudential considerations rather than upon questions of basic power, inasmuch as by the time the case was considered impeachment proceedings were pending in the House of Representatives. The House Judiciary Committee subpoenas were similarly rejected by the President, but instead of going to the courts for enforcement, the Committee adopted as one of its Articles of Impeachment the refusal of the President to honor its subpoenas. Congress has considered bills by which Congress would authorize congressional committees to go to court to enforce their subpoenas; the bills did not purport to define executive privilege, although some indicate a standard by which the federal court is to determine whether the material sought is lawfully being withheld from Congress. The controversy gives little indication at the present time of abating, and it may be assumed that whenever the Executive and Congress are controlled by different political parties there will be persistent conflicts. One may similarly assume that the alteration of this situation would only reduce but not remove the disagreements.

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Clause 3. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Annotations

The Recess Appointments Clause was adopted by the Constitutional Convention without dissent and without debate regarding the intent and scope of its terms. In Federalist No. 67, Alexander Hamilton refers to the recess appointment power as “nothing more than a supplement . . . for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate.” It is generally accepted that the clause was designed to enable the President to ensure the unfettered operation of the government during periods when the Senate was not in session and therefore unable to perform its advice and consent function. In addition to fostering administrative continuity, Presidents have exercised authority under the Recess Appointments Clause for political purposes, appointing officials who might have difficulty securing Senate confirmation.

Two fundamental textual issues arise when interpreting the Recess Appointments Clause. The first is the meaning of the phrase “the Recess of the Senate.” The Senate may recess both between and during its annual sessions, but the time period during which the President may make a recess appointment is not clearly answered by the text of the Constitution. The second fundamental textual issue is what constitutes a vacancy that “may happen” during the recess of the Senate. If the words “may happen” are interpreted to refer only to vacancies that arise during a recess, then the President would lack authority to make a recess appointment to a vacancy that existed before the recess began. For over two centuries the Supreme Court did not address either of these issues, leaving it to the lower courts and other branches of government to interpret the scope of the Recess Appointments Clause.

The Supreme Court ultimately adopted a relatively broad interpretation of the Clause in National Labor Relations Board v. Noel Canning. With respect to the meaning of the phrase “Recess of the Senate,” the Court concluded that the phrase applied to both inter-session recesses and intrasession recesses. In so holding, the Court, finding the text of the Constitution ambiguous, relied on (1) a pragmatic interpretation of the Clause that would allow the President to ensure the “continued functioning” of the federal government when the Senate is away, and (2) “long settled and established [historical] practice” of the President making intrasession recess appointments. The Court declined, however, to say how long a recess must be to fall within the Clause, instead holding that historical practice counseled that a recess of more than three days but less than ten days is “presumptively too short” to trigger the President’s appointment power under the Clause. With respect to the phrase “may happen,” the majority, again finding ambiguity in the text of the Clause, held that the Clause applied both to vacancies that first come into existence during a recess and to vacancies that initially occur before a recess but continue to exist during the recess. In so holding, the Court again relied on both pragmatic concerns and historical practice.

Even under a broad interpretation of the Recess Appointments Clause, the Senate may limit the ability to make recess appointments by exercising its procedural prerogatives. The Court in Noel Canning held that, for the purposes of the Recess Appointments Clause, the Senate is in session when the Senate says it is, provided that, under its own rules, it retains the capacity to transact Senate business. In this vein, Noel Canning provides the Senate with the means to prevent recess appointments by a President who attempts to employ the “subsidiary method” for appointing officers of the United States (i. e. , recess appointments) to avoid the “norm” for appointment (i. e. , appointment pursuant to the Article II, sec. 2, cl. 2).

Federal judges clearly fall within the terms of the Recess Appointments Clause. But, unlike with other offices, a problem exists. Article III judges are appointed “during good behavior,” subject only to removal through impeachment. A judge, however, who is given a recess appointment may be “removed” by the Senate’s failure to advise and consent to his appointment; moreover, on the bench, prior to Senate confirmation, he or she may be subject to influence not felt by other judges. Nonetheless, a constitutional attack upon the status of a federal district judge, given a recess appointment and then withdrawn as a nominee, was rejected by a federal court.

To be distinguished from the power to make recess appointments is the power of the President to make temporary or ad interim designations of officials to perform the duties of other absent officials. Usually such a situation is provided for in advance by a statute that designates the inferior officer who is to act in place of his immediate superior. But, in the absence of such a provision, both theory and practice concede the President the power to make the designation.

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SECTION 3. He shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Annotations

The clause directing the President to report to the Congress on the state of the union imposes a duty rather than confers a power, and is the formal basis of the President’s legislative leadership. The President’s legislative role has attained great proportions since 1900. This development, however, represents the play of political and social forces rather than any pronounced change in constitutional interpretation. Especially is it the result of the rise of parties and the accompanying recognition of the President as party leader, of the appearance of the National Nominating Convention and the Party Platform, and of the introduction of the Spoils System, an ever present help to Presidents in times of troubled relations with Congress. It is true that certain pre-Civil War Presidents, mostly of Whig extraction, professed to entertain nice scruples on the score of “usurping” legislative powers, but still earlier ones, Washington, Jefferson, and Jackson among them, took a very different line, albeit less boldly and persistently than their later imitators. Today, there is no subject on which the President may not appropriately communicate to Congress, in as precise terms as he chooses, his conception of its duty. Conversely, the President is not obliged by this clause to impart information which, in his judgment, should in the public interest be withheld. The President has frequently summoned both Houses into “extra” or “special sessions” for legislative purposes, and the Senate alone for the consideration of nominations and treaties. His power to adjourn the Houses has never been exercised.

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SECTION 3. He shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Annotations

“Ambassadors and other public ministers” embraces not only “all possible diplomatic agents which any foreign power may accredit to the United States,” but also, as a practical construction of the Constitution, all foreign consular agents, who therefore may not exercise their functions in the United States without an exequatur from the President. The power to “receive” ambassadors, et cetera, includes, moreover, the right to refuse to receive them, to request their recall, to dismiss them, and to determine their eligibility under our laws. Furthermore, this power makes the President the sole mouthpiece of the nation in its dealing with other nations.

Wrote Jefferson in 1790: “The transaction of business with foreign nations is executive altogether. It belongs, then, to the head of that department, except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly.” So when Citizen Genet, envoy to the United States from the first French Republic, sought an exequatur for a consul whose commission was addressed to the Congress of the United States, Jefferson informed him that “as the President was the only channel of communication between the United States and foreign nations, it was from him alone ‘that foreign nations or their agents are to learn what is or has been the will of the nation’; that whatever he communicated as such, they had a right and were bound to consider ‘as the expression of the nation’; and that no foreign agent could be ‘allowed to question it,’ or ‘to interpose between him and any other branch of government, under the pretext of either’s transgressing their functions.’ Mr. Jefferson therefore declined to enter into any discussion of the question as to whether it belonged to the President under the Constitution to admit or exclude foreign agents. ‘I inform you of the fact,’ he said, ‘by authority from the President.’ Mr. Jefferson returned the consul’s commission and declared that the President would issue no exequatur to a consul except upon a commission correctly addressed.”

—When in 1798 a Philadelphia Quaker named Logan went to Paris on his own to undertake a negotiation with the French Government with a view to averting war between France and the United States, his enterprise stimulated Congress to pass “An Act to Prevent Usurpation of Executive Functions,” which, “more honored in the breach than the observance,” still survives on the statute books. The year following, John Marshall, then a Member of the House of Representatives, defended President John Adams for delivering a fugitive from justice to Great Britain under the 27th article of the Jay Treaty, instead of leaving the business to the courts. He said: “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign nation can only be made on him. He possesses the whole Executive power. He holds and directs the force of the nation. Of consequence, any act to be performed by the force of the nation is to be performed through him.” Ninety-nine years later, a Senate Foreign Relations Committee took occasion to reiterate Marshall’s doctrine with elaboration.

—In his attack, instigated by Jefferson, upon Washington’s Proclamation of Neutrality in 1793 at the outbreak of war between France and Great Britain, Madison advanced the argument that all large questions of foreign policy fell within the ambit of Congress, by virtue of its power “to declare war” In support of this proposition he disparaged the presidential function of reception: “I shall not undertake to examine, what would be the precise extent and effect of this function in various cases which fancy may suggest, or which time may produce. It will be more proper to observe, in general, and every candid reader will second the observation, that little, if anything, more was intended by the clause, than to provide for a particular mode of communication, almost grown into a right among modern nations; by pointing out the department of the government, most proper for the ceremony of admitting public ministers, of examining their credentials, and of authenticating their title to the privileges annexed to their character by the law of nations. This being the apparent design of the constitution, it would be highly improper to magnify the function into an important prerogative, even when no rights of other departments could be affected by it.”

—Hamilton, although he had expressed substantially the same view in The Federalist regarding the power of reception, adopted a very different conception of it in defense of Washington’s proclamation. Writing under the pseudonym, “Pacificus,” he said: “The right of the executive to receive ambassadors and other public ministers, may serve to illustrate the relative duties of the executive and legislative departments. This right includes that of judging, in the case of a revolution of government in a foreign country, whether the new rulers are competent organs of the national will, and ought to be recognized, or not; which, where a treaty antecedently exists between the United States and such nation, involves the power of continuing or suspending its operation. For until the new government is acknowledged, the treaties between the nations, so far at least as regards public rights, are of course suspended. This power of determining virtually upon the operation of national treaties, as a consequence of the power to receive public ministers, is an important instance of the right of the executive, to decide upon the obligations of the country with regard to foreign nations. To apply it to the case of France, if there had been a treaty of alliance, offensive and defensive, between the United States and that country, the unqualified acknowledgment of the new government would have put the United States in a condition to become as an associate in the war with France, and would have laid the legislature under an obligation, if required, and there was otherwise no valid excuse, of exercising its power of declaring war. This serves as an example of the right of the executive, in certain cases, to determine the condition of the nation, though it may, in its consequences, affect the exercise of the power of the legislature to declare war. Nevertheless, the executive cannot thereby control the exercise of that power. The legislature is still free to perform its duties, according to its own sense of them; though the executive, in the exercise of its constitutional powers, may establish an antecedent state of things, which ought to weigh in the legislative decision. The division of the executive power in the Constitution, creates a concurrent authority in the cases to which it relates.”

—Nor did Jefferson himself officially support Madison’s point of view, as the following extract from his “minutes of a Conversation,” which took place July 10, 1793, between himself and Citizen Genet, show: “He asked if they [Congress] were not the sovereign. I told him no, they were sovereign in making laws only, the executive was sovereign in executing them, and the judiciary in construing them where they related to their department. ‘But,’ said he, ‘at least, Congress are bound to see that the treaties are observed.’ I told him no; there were very few cases indeed arising out of treaties, which they could take notice of; that the President is to see that treaties are observed. ‘If he decides against the treaty, to whom is a nation to appeal?’ I told him the Constitution had made the President the last appeal. He made me a bow, and said, that indeed he would not make me his compliments on such a Constitution, expressed the utmost astonishment at it, and seemed never before to have had such an idea.”

In his endeavor in 1793 to minimize the importance of the President’s power of reception, Madison denied that it involved cognizance of the question, whether those exercising the government of the accrediting state had the right along with the possession. He said: “This belongs to the nation, and to the nation alone, on whom the government operates. . . . It is evident, therefore, that if the executive has a right to reject a public minister, it must be founded on some other consideration than a change in the government, or the newness of the government; and consequently a right to refuse to acknowledge a new government cannot be implied by the right to refuse a public minister. It is not denied that there may be cases in which a respect to the general principles of liberty, the essential rights of the people, or the overruling sentiments of humanity, might require a government, whether new or old, to be treated as an illegitimate despotism. Such are in fact discussed and admitted by the most approved authorities. But they are great and extraordinary cases, by no means submitted to so limited an organ of the national will as the executive of the United States; and certainly not to be brought by any torture of words, within the right to receive ambassadors.”

Hamilton, with the case of Genet before him, had taken the contrary position, which history has ratified. In consequence of his power to receive and dispatch diplomatic agents, but more especially the former, the President possesses the power to recognize new states, communities claiming the status of belligerency, and changes of government in established states; also, by the same token, the power to decline recognition, and thereby decline diplomatic relations with such new states or governments. The affirmative precedents down to 1906 are succinctly summarized by John Bassett Moore in his famous Digest, as follows: “In the preceding review of the recognition, respectively, of the new states, new governments, and belligerency, there has been made in each case a precise statement of facts, showing how and by whom the recognition was accorded. In every case, as it appears, of a new government and of belligerency, the question of recognition was determined solely by the Executive. In the case of the Spanish-American republics, of Texas, of Hayti, and of Liberia, the President, before recognizing the new state, invoked the judgment and cooperation of Congress; and in each of these cases provision was made for the appointment of a minister, which, when made in due form, constitutes, as has been seen, according to the rules of international law, a formal recognition. In numerous other cases, the recognition was given by the Executive solely on his own responsibility.”

An examination of this historical practice, along with other functional considerations, led the Supreme Court to hold in Zivotofsky v. Kerry that the Executive retains exclusive authority over the recognition of foreign sovereigns and their territorial bounds. Although Congress, pursuant to its enumerated powers in the field of foreign affairs, may properly legislate on matters which precede and follow a presidential act of recognition, including in ways which may undercut the policies that inform the President’s recognition decision, it may not alter the President’s recognition decision.

—The question of Congress’s right also to recognize new states was prominently raised in connection with Cuba’s successful struggle for independence. Beset by numerous legislative proposals of a more or less mandatory character, urging recognition upon the President, the Senate Foreign Relations Committee, in 1897, made an elaborate investigation of the whole subject and came to the following conclusions as to this power: “The ‘recognition’ of independence or belligerency of a foreign power, technically speaking, is distinctly a diplomatic matter. It is properly evidenced either by sending a public minister to the government thus recognized, or by receiving a public minister therefrom. The latter is the usual and proper course. Diplomatic relations with a new power are properly, and customarily inaugurated at the request of that power, expressed through an envoy sent for the purpose. The reception of this envoy, as pointed out, is the act of the President alone. The next step, that of sending a public minister to the nation thus recognized, is primarily the act of the President. The Senate can take no part in it at all, until the President has sent in a nomination. Then it acts in its executive capacity, and, customarily, in ‘executive session.’ The legislative branch of the government can exercise no influence over this step except, very indirectly, by withholding appropriations. . . . Nor can the legislative branch of the government hold any communications with foreign nations. The executive branch is the sole mouthpiece of the nation in communication with foreign sovereignties.”

“Foreign nations communicate only through their respective executive departments. Resolutions of their legislative departments upon diplomatic matters have no status in international law. In the department of international law, therefore, properly speaking, a Congressional recognition of belligerency or independence would be a nullity. . . . Congress can help the Cuban insurgents by legislation in many ways, but it cannot help them legitimately by mere declarations, or by attempts to engage in diplomatic negotiations, if our interpretation of the Constitution is correct. That it is correct . . . [is] shown by the opinions of jurists and statesmen of the past.” Congress was able ultimately to bundle a clause recognizing the independence of Cuba, as distinguished from its government, into the declaration of war of April 11, 1898, against Spain. For the most part, the sponsors of the clause defended it by the following line of reasoning. Diplomacy, they said, was now at an end, and the President himself had appealed to Congress to provide a solution for the Cuban situation. In response, Congress was about to exercise its constitutional power of declaring war, and it has consequently the right to state the purpose of the war which it was about to declare. The recognition of the Union of Soviet Socialist Republics in 1933 was an exclusively presidential act.

—The potentialities of nonrecognition were conspicuously illustrated by President Woodrow Wilson when he refused, early in 1913, to recognize Provisional President Huerta as the de facto government of Mexico, thereby contributing materially to Huerta’s downfall the year following. At the same time, Wilson announced a general policy of nonrecognition in the case of any government founded on acts of violence, and while he observed this rule with considerable discretion, he consistently refused to recognize the Union of Soviet Socialist Republics, and his successors prior to President Franklin D. Roosevelt did the same. The refusal of the Hoover administration to recognize the independence of the Japanese puppet state of Manchukuo early in 1932 was based on kindred grounds. Similarly, the nonrecognition of the Chinese Communist Government from the Truman Administration to President Nixon’s de facto recognition through a visit in 1972—not long after the People’s Republic of China was admitted to the United Nations and Taiwan excluded—proved to be an important part of American foreign policy during the Cold War.

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SECTION 3. He shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Annotations

No President was ever more jealous of his prerogative in the realm of foreign relations than Woodrow Wilson. When, however, strong pressure was brought to bear upon him by Great Britain respecting his Mexican Policy, he was constrained to go before Congress and ask for a modification of the Panama Tolls Act of 1911, which had also aroused British ire. Addressing Congress, he said, “I ask this of you in support of the foreign policy of the Administration. I shall not know how to deal with other matters of even greater delicacy and nearer consequence if you do not grant it to me in ungrudging measure.”

The fact is, of course, that Congress has enormous powers that are indispensable to any foreign policy. In the long run, Congress is the body that lays and collects taxes for the common defense, that creates armies and maintains navies, although it does not direct them, that pledges the public credit, that declares war, that defines offenses against the law of nations, that regulates foreign commerce; and it has the further power “to make all laws which shall be necessary and proper”—that is, which it deems to be such— for carrying into execution not only its own powers but all the powers “of the government of the United States and of any department or officer thereof.” Moreover, its laws made “in pursuance” of these powers are “supreme law of the land,” and the President is bound constitutionally to “take Care that” they “be faithfully executed.” In point of fact, congressional legislation has operated to augment presidential powers in the foreign field much more frequently than it has to curtail them. The Lend-Lease Act of March 11, 1941 is the classic example, although it only brought to culmination a whole series of enactments with which Congress had aided and abetted the administration’s foreign policy in the years between 1934 and 1941. Disillusionment with presidential policies in the context of the Vietnamese conflict led Congress to legislate restrictions, not only with respect to the discretion of the President to use troops abroad in the absence of a declaration of war, but also limiting his economic and political powers through curbs on his authority to declare national emergencies. The lesson of history, however, appears to be that congressional efforts to regain what is deemed to have been lost to the President are intermittent, whereas the presidential exercise of power in today’s world is unremitting.

It is not within the province of the courts to inquire into the policy underlying action taken by the “political departments”— Congress and the President—in the exercise of their conceded powers. This commonplace maxim is, however, sometimes given an enlarged application, so as to embrace questions as to the existence of facts and even questions of law, that the Court would normally regard as falling within its jurisdiction. Such questions are termed “political questions,” and are especially common in the field of foreign relations. The leading case is Foster v. Neilson, where the matter in dispute was the validity of a grant made by the Spanish Government in 1804 of land lying to the east of the Mississippi River, and in which there was also raised the question whether the region between the Perdido and Mississippi Rivers belonged in 1804 to Spain or the United States.

Chief Justice Marshall’s opinion for the Court held that the Court was bound by the action of the political departments, the President and Congress, in claiming the land for the United States. He wrote: “If those departments which are intrusted with the foreign intercourse of the nation, which assert and maintain its interests against foreign powers, have unequivocally asserted its right of dominion over a country of which it is in possession, and which it claims under a treaty; if the legislature has acted on the construction thus asserted, it is not in its own courts that this construction is to be denied. A question like this, respecting the boundaries of nations, is, as has been truly said, more a political than a legal question, and in its discussion, the courts of every country must respect the pronounced will of the legislature.”

The doctrine thus clearly stated is further exemplified, with particular reference to presidential action, by Williams v. Suffolk Ins. Co. In this case the underwriters of a vessel which had been confiscated by the Argentine Government for catching seals off the Falkland Islands, contrary to that Government’s orders, sought to escape liability by showing that the Argentinian Government was the sovereign over these islands and that, accordingly, the vessel had been condemned for willful disregard of legitimate authority. The Court decided against the company on the ground that the President had taken the position that the Falkland Islands were not a part of Argentina. “[C]an there be any doubt, that when the executive branch of the government, which is charged with our foreign relations, shall, in its correspondence with a foreign nation, assume a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department? And in this view, it is not material to inquire, nor is it the province of the court to determine, whether the executive be right or wrong. It is enough to know, that in the exercise of his constitutional functions, he had decided the question. Having done this, under the responsibilities which belong to him, it is obligatory on the people and government of the Union.”

“If this were not the rule, cases might often arise, in which, on most important questions of foreign jurisdiction, there would be an irreconcilable difference between the executive and judicial departments. By one of these departments, a foreign island or country might be considered as at peace with the United States; whilst the other would consider it in a state of war. No well-regulated government has ever sanctioned a principle so unwise, and so destructive of national character.” Thus, the right to determine the boundaries of the country is a political function, as is also the right to determine what country is sovereign of a particular region, to determine whether a community is entitled under international law to be considered a belligerent or an independent state, to determine whether the other party has duly ratified a treaty, to determine who is the de jure or de facto ruler of a country, to determine whether a particular person is a duly accredited diplomatic agent to the United States, to determine how long a military occupation shall continue in fulfillment of the terms of a treaty, to determine whether a treaty is in effect or not, although doubtless an extinguished treaty could be constitutionally renewed by tacit consent.

—The assumption underlying the refusal of courts to intervene in cases involving conduct of foreign relations is well stated in Chicago & S. Air Lines v. Waterman S. S. Corp. Here, the Court refused to review orders of the Civil Aeronautics Board granting or denying applications by citizen carriers to engage in overseas and foreign air transportation, which by the terms of the Civil Aeronautics Act were subject to approval by the President and therefore impliedly beyond those provisions of the act authorizing judicial review of board orders. Elaborating on the necessity of judicial abstinence in the conduct of foreign relations, Justice Jackson declared for the Court: “The President, both as Commander in Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports are not and ought not be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution on the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.”

To the same effect are the Court’s holding and opinion in Ludecke v. Watkins, where the question at issue was the power of the President to order the deportation under the Alien Enemy Act of 1798 of a German alien enemy after the cessation of hostilities with Germany. Said Justice Frankfurter for the Court: “War does not cease with a cease-fire order, and power to be exercised by the President such as that conferred by the Act of 1798 is a process which begins when war is declared but is not exhausted when the shooting stops. . . . The Court would be assuming the functions of the political agencies of the government to yield to the suggestion that the unconditional surrender of Germany and the disintegration of the Nazi Reich have left Germany without a government capable of negotiating a treaty of peace. It is not for us to question a belief by the President that enemy aliens who were justifiably deemed fit subject for internment during active hostilities do not lose their potency for mischief during the period of confusion and conflict which is characteristic of a state of war even when the guns are silent but the peace of Peace has not come. These are matters of political judgment for which judges have neither technical competence nor official responsibility.”

The Court reviewed the political question doctrine in Baker v. Carr. There, Justice Brennan noted and elaborated the factors which go into making a question political and inappropriate for judicial decision. On the matter at hand, he said: “There are sweeping statements to the effect that all questions touching foreign relations are political questions. Not only does resolution of such issues frequently turn on standards that defy judicial application, or involve the exercise of a discretion demonstrably committed to the executive or legislature; but many such questions uniquely demand single-voiced statement of the Government’s views. Yet it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance. Our cases in this field seem invariably to show a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action.” However, the Court came within one vote of creating a broad application of the political question doctrine in foreign relations disputes, at least in the context of a dispute between Congress and the President with respect to a proper allocation of constitutional powers. In any event, the Court, in adjudicating on the merits disputes in which the foreign relations powers are called into question, follows a policy of such deference to executive and congressional expertise that the result may not be dissimilar to a broad application of the political question doctrine.

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SECTION 3. He shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Annotations

The Constitution does not say that the President shall execute the laws, but that “he shall take Care that the Laws be faithfully executed,” i. e. , by others, who are commonly, but not always with strict accuracy, termed his subordinates. What powers are implied from this duty? In this connection, five categories of executive power should be distinguished: first, there is that executive power which the Constitution confers directly upon the President by the opening clause of article II and, in more specific terms, by succeeding clauses of the same article; secondly, there is the sum total of the powers which acts of Congress at any particular time confer upon the President; thirdly, there is the sum total of discretionary powers which acts of Congress at any particular time confer upon heads of departments and other executive (“administrative”) agencies of the National Government; fourthly, there is the power which stems from the duty to enforce the criminal statutes of the United States; finally, there are so-called “ministerial duties” which admit of no discretion as to the occasion or the manner of their discharge. Three principal questions arise: first, how does the President exercise the powers which the Constitution or the statutes confer upon him; second, in what relation does he stand by virtue of the Take Care Clause to the powers of other executive or administrative agencies; third, in what relation does he stand to the enforcement of the criminal laws of the United States?

Whereas the British monarch is constitutionally under the necessity of acting always through agents if his acts are to receive legal recognition, the President is presumed to exercise certain of his constitutional powers personally. In the words of an opinion by Attorney General Cushing in 1855: “It may be presumed that he, the man discharging the presidential office, and he alone, grants reprieves and pardons for offenses against the United States. . . . So he, and he alone, is the supreme commander in chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States. That is a power constitutionally inherent in the person of the President. No act of Congress, no act even of the President himself, can, by constitutional possibility, authorize or create any military officer not subordinate to the President.” Moreover, the obligation to act personally may be sometimes enlarged by statute, as, for example, by the act organizing the President with other designated officials into “an Establishment by name of the Smithsonian Institute.” Here, says the Attorney General, “the President’s name of office is designatio personae.” He was also of opinion that expenditures from the “secret service” fund, in order to be valid, must be vouched for by the President personally. On like grounds the Supreme Court once held void a decree of a court martial, because, though it has been confirmed by the Secretary of War, it was not specifically stated to have received the sanction of the President as required by the 65th Article of War. This case has, however, been virtually overruled, and at any rate such cases are exceptional.

The general rule, as stated by the Court, is that when any duty is cast by law upon the President, it may be exercised by him through the head of the appropriate department, whose acts, if performed within the law, thus become the President’s acts. Williams v. United States involved an act of Congress that prohibited the advance of public money in any case whatever to disbursing officers of the United States, except under special direction by the President. The Supreme Court held that the act did not require the personal performance by the President of this duty. Such a practice, said the Court, if it were possible, would absorb the duties of the various departments of the government in the personal acts of one chief executive officer, and be fraught with mischief to the public service. The President’s duty in general requires his superintendence of the administration; yet he cannot be required to become the administrative officer of every department and bureau, or to perform in person the numerous details incident to services which, nevertheless, he is, in a correct sense, by the Constitution and laws required and expected to perform. As a matter of administrative practice, in fact, most orders and instructions emanating from the heads of the departments, even though in pursuance of powers conferred by statute on the President, do not even refer to the President.

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SECTION 3. He shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Annotations

In his Third Annual Message to Congress, President Jefferson established the first faint outline of what years later became a major controversy. Reporting that $50,000 in funds which Congress had appropriated for fifteen gunboats on the Mississippi remained unexpended, the President stated that a “favorable and peaceful turn of affairs on the Mississippi rendered an immediate execution of the law unnecessary. . . .” But he was not refusing to expend the money, only delaying action to obtain improved gunboats; a year later, he told Congress that the money was being spent and gunboats were being obtained. A few other instances of deferrals or refusals to spend occurred in the Nineteenth and early Twentieth Centuries, but it was only with the Administration of President Franklin Roosevelt that a President refused to spend moneys for the purposes appropriated. Succeeding Presidents expanded upon these precedents, and in the Nixon Administration a well-formulated plan of impoundments was executed in order to reduce public spending and to negate programs established by congressional legislation.

Impoundment was defended by Administration spokesmen as being a power derived from the President’s executive powers and particularly from his obligation to see to the faithful execution of the laws, i. e. , his discretion in the manner of execution. The President, the argument went, is responsible for deciding when two conflicting goals of Congress can be harmonized and when one must give way, when, for example, congressional desire to spend certain moneys must yield to congressional wishes to see price and wage stability. In some respects, impoundment was said or implied to flow from certain inherent executive powers that repose in any President. Finally, statutory support was sought; certain laws were said to confer discretion to withhold spending, and it was argued that congressional spending programs are discretionary rather than mandatory.

On the other hand, it was argued that Congress’s powers under Article I, § 8, were fully adequate to support its decision to authorize certain programs, to determine the amount of funds to be spent on them, and to mandate the Executive to execute the laws. Permitting the President to impound appropriated funds allowed him the power of item veto, which he does not have, and denied Congress the opportunity to override his veto of bills enacted by Congress. In particular, the power of Congress to compel the President to spend appropriated moneys was said to derive from Congress’s power “to make all Laws which shall be necessary and proper for carrying into Execution” the enumerated powers of Congress and “all other Powers vested by this Constitution in the Government of the United States, or in any Department or officer thereof.”

The President’s decision to impound large amounts of appropriated funds led to two approaches to curtail the power. First, many persons and organizations, with a reasonable expectation of receipt of the impounded funds upon their release, brought large numbers of suits; with a few exceptions, these suits resulted in decisions denying the President either constitutional or statutory power to decline to spend or obligate funds, and the Supreme Court, presented with only statutory arguments by the Administration, held that no discretion existed under the particular statute to withhold allotments of funds to the states. Second, Congress in the course of revising its own manner of appropriating funds in accordance with budgetary responsibility provided for mandatory reporting of impoundments to Congress, for congressional disapproval of impoundments, and for court actions by the Comptroller General to compel spending or obligation of funds.

Generally speaking, the law recognized two types of impoundments: “routine” or “programmatic” reservations of budget authority to provide for the inevitable contingencies that arise in administering congressionally-funded programs and “policy” decisions that are ordinarily intended to advance the broader fiscal or other policy objectives of the executive branch contrary to congressional wishes in appropriating funds in the first place.

Routine reservations were to come under the terms of a revised Anti-Deficiency Act. Prior to its amendment, this law had permitted the President to “apportion” funds “to provide for contingencies, or to effect savings whenever savings are made possible by or through changes in requirements, greater efficiency of operations, or other developments subsequent to the date on which such appropriation was made available.” President Nixon had relied on this “other developments” language as authorization to impound, for what in essence were policy reasons. Congress deleted the controverted clause and retained the other language to authorize reservations to maintain funds for contingencies and to effect savings made possible in carrying out the program; it added a clause permitting reserves “as specifically provided by law.”

“Policy” impoundments were to be reported to Congress by the President as permanent rescissions and, perhaps, as temporary deferrals. Rescissions are merely recommendations or proposals of the President and must be authorized by a bill or joint resolution, or, after 45 days from the presidential message, the funds must be made available for obligation. Temporary deferrals of budget authority for less than a full fiscal year, as provided in the 1974 law, were to be effective unless either the House of Representatives or the Senate passed a resolution of disapproval. With the decision in INS v. Chadha, voiding as unconstitutional the one-House legislative veto, it was evident that the veto provision in the deferral section of the Impoundment Control Act was no longer viable. An Administration effort to utilize the section, minus the veto device, was thwarted by court action, in which, applying established sever-ability analysis, the court held that Congress would not have enacted the deferral provision in the absence of power to police its exercise through the veto. Thus, the entire deferral section was inoperative. Congress, in 1987, enacted a more restricted authority, limited to deferrals only for those purposes set out in the Anti-Deficiency Act.

With passage of the Act, the constitutional issues faded into the background; Presidents regularly reported rescission proposals, and Congress responded by enacting its own rescissions, usually topping the Presidents’. The entire field was, of course, confounded by the application of the other part of the 1974 law, the Budget Act, which restructured how budgets were received and acted on in Congress, and by the Balanced Budget and Emergency Deficit Control Act of 1985. This latter law was designed as a deficit-reduction forcing mechanism, so that unless President and Congress cooperate each year to reduce the deficit by prescribed amounts, a “sequestration” order would reduce funds down to a mandated figure. Dissatisfaction with the amount of deficit reduction continues to stimulate discussion of other means, such as “expedited” rescission and the line-item veto, many of which may raise some constitutional issues.

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SECTION 3. He shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Annotations

If the law casts a duty upon a head of department eo nomine, does the President thereupon become entitled by virtue of his duty to “take Care that the Laws be faithfully executed,” to substitute his own judgment for that of the principal officer regarding the discharge of such duty? In the debate in the House in 1789 on the location of the removal power, Madison argued that it ought to be attributed to the President alone because it was “the intention of the Constitution, expressed especially in the faithful execution clause, that the first magistrate should be responsible for the executive department,” and this responsibility, he held, carried with it the power to “inspect and control” the conduct of subordinate executive officers. “Vest,” said he, “the power [of removal] in the Senate jointly with the President, and you abolish at once the great principle of unity and responsibility in the executive department, which was intended for the security of liberty and the public good.”

But this was said with respect to the office of the Secretary of State, and when shortly afterward the question arose as to the power of Congress to regulate the tenure of the Comptroller of the Treasury, Madison assumed a very different attitude, conceding in effect that this office was to be an arm of certain of Congress’s own powers and should therefore be protected against the removal power. And in Marbury v. Madison, Chief Justice Marshall traced a parallel distinction between the duties of the Secretary of State under the original act which had created a “Department of Foreign Affairs” and those which had been added by the later act changing the designation of the department to its present one. The former were, he pointed out, entirely in the “political field,” and hence for their discharge the Secretary was left responsible absolutely to the President. The latter, on the other hand, were exclusively of statutory origin and sprang from the powers of Congress. For these, therefore, the Secretary was “an officer of the law” and “amenable to the law for his conduct.”

—An opinion rendered by Attorney General Wirt in 1823 asserted the proposition that the President’s duty under the Take Care Clause required of him scarcely more than that he should bring a criminally negligent official to book for his derelictions, either by removing him or by setting in motion against him the processes of impeachment or of criminal prosecutions. The opinion entirely overlooked the important question of the location of the power to interpret the law, which is inevitably involved in any effort to enforce it. The diametrically opposed theory that Congress is unable to vest any head of an executive department, even within the field of Congress’s specifically delegated powers, with any legal discretion which the President is not entitled to control was first asserted in unambiguous terms in President Jackson’s Protest Message of April 15, 1834, defending his removal of Duane as Secretary of the Treasury, because of the latter’s refusal to remove the deposits from the Bank of the United States. Here it is asserted “that the entire executive power is vested in the President;” that the power to remove those officers who are to aid him in the execution of the laws is an incident of that power; that the Secretary of the Treasury was such an officer; that the custody of the public property and money was an executive function exercised through the Secretary of the Treasury and his subordinates; that in the performance of these duties the Secretary was subject to the supervision and control of the President; and finally that the act establishing the Bank of the United States “did not, as it could not change the relation between the President and Secretary—did not release the former from his obligation to see the law faithfully executed nor the latter from the President’s supervision and control.” In short, the President’s removal power, in this case unqualified, was the sanction provided by the Constitution for his power and duty to control his “subordinates” in all their official actions of public consequence.

— The Court’s 1838 decision in Kendall v. United States ex rel. Stokes, shed more light on congressional power to mandate actions by executive branch officials. The United States owed Stokes money, and when Postmaster General Kendall, at Jackson’s instigation, refused to pay it, Congress passed a special act ordering payment. Kendall, however, still proved noncompliant, whereupon Stokes sought and obtained a mandamus in the United States circuit court for the District of Columbia, and on appeal this decision was affirmed by the Supreme Court. Although Kendall, like Marbury v. Madison, involved the question of the responsibility of a head of a department for the performance of a ministerial duty, the discussion by counsel before the Court and the Court’s own opinion covered the entire subject of the relation of the President to his subordinates in the performance by them of statutory duties. The lower court had asserted that the duty of the President under the faithful execution clause gave him no other control over the officer than to see that he acts honestly, with proper motives, but no power to construe the law and see that the executive action conforms to it. Counsel for Kendall attacked this position vigorously, relying largely upon statements by Hamilton, Marshall, James Wilson, and Story having to do with the President’s power in the field of foreign relations.

The Court rejected the implication with emphasis. There are, it pointed out, “certain political duties imposed upon many officers in the executive department, the discharge of which is under the direction of the President. But it would be an alarming doctrine, that Congress cannot impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the Constitution; and in such cases the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the President. And this is emphatically the case, where the duty enjoined is of a mere ministerial character.” In short, the Court recognized the underlying question of the case to be whether the President’s duty to “take Care that the Laws be faithfully executed” made it constitutionally impossible for Congress ever to entrust the construction of its statutes to anybody but the President, and it answered this in the negative.

—How does this issue stand today? The answer to this question, so far as there is one, is to be sought in a comparison of the Court’s decision in Myers, on the one hand, and its decision in Morrison, on the other. The first decision is still valid to support the President’s right to remove, and hence to control the decisions of, all officials through whom he exercises the great political powers which he derives from the Constitution, and also to remove many but not all officials—usually heads of departments— through whom he exercises powers conferred upon him by statute. Morrison, however, recasts Myers to be about the constitutional inability of Congress to participate in removal decisions. It permits Congress to limit the removal power of the President, and those acting for him, by imposition of a “good cause” standard, subject to a balancing test. That is, the Court now regards the critical issue not as what officials do, whether they perform “purely executive” functions or “quasi” legislative or judicial functions, though the duties and functions must be considered. Rather, the Courts must “ensure that Congress does not interfere with the President’s exercise of the ‘executive power’” and his constitutionally appointed duty under Article II to take care that the laws be faithfully executed. Thus, the Court continued, Myers was correct in its holding and in its suggestion that there are some executive officials who must be removable by the President if he is to perform his duties. On the other hand, Congress may believe that it is necessary to protect the tenure of some officials, and if it has good reasons not limited to invasion of presidential prerogatives, it will be sustained, provided the removal restrictions are not of such a nature as to impede the President’s ability to perform his constitutional duties. The officer in Morrison, the independent counsel, had investigative and prosecutorial functions, purely executive ones, but there were good reasons for Congress to secure her tenure and no showing that the restriction “unduly trammels” presidential powers.

The “bright-line” rule previously observed no longer holds. Now, Congress has a great deal more leeway in regulating executive officials, but it must articulate its reasons carefully and observe the fuzzy lines set by the Court.

—This matter also came to a head in “the reign of Andrew Jackson,” preceding, and indeed foreshadowing, the Duane episode by some months. “At that epoch,” Wyman relates in his Principles of Administrative Law, “the first amendment of the doctrine of centralism in its entirety was set forth in an obscure opinion upon an unimportant matter—The Jewels of the Princess of Orange, 2 Opin. 482 (1831). These jewels . . . were stolen from the Princess by one Polari and were seized by the officers of the United States Customs in the hands of the thief. Representations were made to the President of the United States by the Minister of the Netherlands of the facts in the matter, which were followed by a request for return of the jewels. In the meantime the District Attorney was prosecuting condemnation proceedings in behalf of the United States which he showed no disposition to abandon. The President felt himself in a dilemma, whether if it was by statute the duty of the District Attorney to prosecute or not, the President could interfere and direct whether to proceed or not. The opinion was written by Taney, then Attorney General; it is full of pertinent illustrations as to the necessity in an administration of full power in the chief executive as the concomitant of his full responsibility. It concludes: If it should be said that, the District Attorney having the power to discontinue the prosecution, there is no necessity for inferring a right in the President to direct him to exercise it—I answer that the direction of the President is not required to communicate any new authority to the District Attorney, but to direct him in the execution of a power he is admitted to possess. The most valuable and proper measure may often be for the President to order the District Attorney to discontinue prosecution. The District Attorney might refuse to obey the President’s order; and if he did refuse, the prosecution, while he remained in office, would still go on; because the President himself could give no order to the court or to the clerk to make any particular entry. He could only act through his subordinate officer, the District Attorney, who is responsible to him and who holds his office at his pleasure. And if that officer still continues a prosecution which the President is satisfied ought not to continue, the removal of the disobedient officer and the substitution of one more worthy in his place would enable the President through him faithfully to execute the law. And it is for this among other reasons that the power of removing the District Attorney resides in the President.”

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SECTION 3. He shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Annotations

The power accruing to the President from his function of law interpretation preparatory to law enforcement is daily illustrated in relation to such statutes as the Anti-Trust Acts, the Taft-Hartley Act, the Internal Security Act, and many lesser statutes. Nor is this the whole story. Not only do all presidential regulations and orders based on statutes that vest power in him or on his own constitutional powers have the force of law, provided they do not transgress the Court’s reading of such statutes or of the Constitution, but he sometimes makes law in a more special sense. In the famous Neagle case, an order of the Attorney General to a United States marshal to protect a Justice of the Supreme Court whose life has been threatened by a suitor was attributed to the President and held to be “a law of the United States” in the sense of section 753 of the Revised Statutes, and as such to afford basis for a writ of habeas corpus transferring the marshal, who had killed the attacker, from state to national custody. Speaking for the Court, Justice Miller inquired: “Is this duty [the duty of the President to take care that the laws be faithfully executed] limited to the enforcement of acts of Congress or of treaties of the United States according to their express terms, or does it include the rights, duties and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of the government under the Constitution?” Obviously, an affirmative answer is assumed to the second branch of this inquiry, an assumption that is borne out by numerous precedents. And, in United States v. Midwest Oil Co., the Court ruled that the President had, by dint of repeated assertion of it from an early date, acquired the right to withdraw, via the Land Department, public lands, both mineral and non-mineral, from private acquisition, Congress having never repudiated the practice.

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SECTION 3. He shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Annotations

“Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State or Territory by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.”

“The President, by using the militia or the armed forces, or both . . . shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law . . . .”

These quoted provisions of the United States Code consolidate a course of legislation that began at the time of the Whiskey Rebellion of 1792. In Martin v. Mott, which arose out of the War of 1812, the Court held that the authority to decide whether the exigency had arisen belonged exclusively to the President. Even before that time, Jefferson had, in 1808, in the course of his efforts to enforce the Embargo Acts, issued a proclamation ordering “all officers having authority, civil or military, who shall be found in the vicinity” of an unruly combination, to aid and assist “by all means in their power, by force of arms or otherwise” the suppression of such combination. Forty-six years later, Attorney General Cushing advised President Pierce that in enforcing the Fugitive Slave Act of 1850, marshals of the United States had authority when opposed by unlawful combinations to summon to their aid not only bystanders and citizens generally, but armed forces within their precincts, both state militia and United States officers, soldiers, sailors, and marines, a doctrine that Pierce himself improved upon two years later by asserting, with reference to the civil war then raging in Kansas, that it lay within his obligation to take care that the laws be faithfully executed to place the forces of the United States in Kansas at the disposal of the marshal there, to be used as a portion of the posse comitatus. Lincoln’s call of April 15, 1861, for 75,000 volunteers was, on the other hand, a fresh invocation, though of course on a vastly magnified scale, of Jefferson’s conception of a posse comitatus subject to presidential call. The provisions above extracted from the United States Code ratified this conception with regard to the state militias and the national forces.

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Justia › US Law › US Codes and Statutes › US Constitution Annotated › Article II. Executive Department › Suspension of Habeas Corpus by the President

SECTION 3. He shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Annotations

See Article I, § 9.