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VINSON, C. J., dissenting.

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capable of action. Under this view, he is left powerless because a power not expressly given to Congress is nevertheless found to rest exclusively with Congress.

Consideration of this view of executive impotence calls for further examination of the nature of the separation of powers under our tripartite system of Government. The Constitution provides: Art. I,

Section 1. "All legislative Powers herein granted

shall be vested in a Congress of the United

States,
Art. II,

Section 1. "The executive Power shall be vested

in a President of the United States of Amer

ica. Section 2. “The President shall be Commander

in Chief of the Army and Navy of the United

States, . “He shall have Power, by and with the Ad

vice and Consent of the Senate, to make Treaties, provided two thirds of the Senators

present concur; Section 3. "He shall from time to time give to

the Congress Information of the State of the
Union, and recommend to their Consideration
such Measures as he shall judge necessary and
expedient; ... he shall take Care that the

Laws be faithfully executed,
Art. III,

Section 1. "The judicial Power of the United

States, shall be vested in one supreme Court, and in such inferior Courts as the Congress

may from time to time ordain and establish." The whole of the "executive Power" is vested in the President. Before entering office, the President swears that he "will faithfully execute the Office of President of the

.

VINSON, C. J., dissenting.

343 U.S.

United States, and will to the best of [his] Ability, preserve, protect and defend the Constitution of the United States." Art. II, $ 1.

This comprehensive grant of the executive power to a single person was bestowed soon after the country had thrown the yoke of monarchy. Only by instilling initiative and vigor in all of the three departments of Government, declared Madison, could tyranny in any form be avoided.26 Hamilton added: “Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.” 27 It is thus apparent that the Presidency was deliberately fashioned as an office of power and independence. Of course, the Framers created no autocrat capable of arrogating any power unto himself at any time. But neither did they create an automaton impotent to exercise the powers of Government at a time when the survival of the Republic itself may be at stake.

In passing upon the grave constitutional question presented in this case, we must never forget, as Chief Justice Marshall admonished, that the Constitution is "intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs,” and that “[i]ts means are adequate to its ends." 28 Cases do arise presenting questions which could not have been foreseen by the Framers. In such cases, the Constitution has been treated as a living document adaptable to new situa

26 The Federalist, No. XLVIII. 27 The Federalist, No. LXX. 28 McCulloch v. Maryland, 4 Wheat. 316, 415, 424 (1819).

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VINSON, C. J., dissenting.

tions.29 But we are not called upon today to expand the Constitution to meet a new situation. For, in this case, we need only look to history and time-honored principles of constitutional law-principles that have been applied consistently by all branches of the Government throughout our history. It is those who assert the invalidity of the Executive Order who seek to amend the Constitution in this case.

III.

A review of executive action demonstrates that our Presidents have on many occasions exhibited the leadership contemplated by the Framers when they made the President Commander in Chief, and imposed upon him the trust to “take Care that the Laws be faithfully executed.” With or without explicit statutory authorization, Presidents have at such times dealt with national emergencies by acting promptly and resolutely to enforce legislative programs, at least to save those programs until Congress could act. Congress and the courts have responded to such executive initiative with consistent approval.

Our first President displayed at once the leadership contemplated by the Framers. When the national revenue laws were openly flouted in some sections of Pennsylvania, President Washington, without waiting for a call from the state government, summoned the militia and took decisive steps to secure the faithful execution of the laws.30 When international disputes engendered by the French revolution threatened to involve this country in war, and while congressional policy remained uncertain, Washington issued his Proclamation of Neutrality. Hamilton, whose defense of the Proclamation

29 United States v. Classic, 313 U. S. 299, 315-316 (1941); Home Building & Loan Assn. V. Blaisdell, 290 U. S. 398, 442–443 (1934).

30 4 Annals of Congress 1411, 1413 (1794).

VINSON, C. J., dissenting.

343 U.S.

has endured the test of time, invoked the argument that the Executive has the duty to do that which will preserve peace until Congress acts and, in addition, pointed to the need for keeping the Nation informed of the requirements of existing laws and treaties as part of the faithful execution of the laws.31

President John Adams issued a warrant for the arrest of Jonathan Robbins in order to execute the extradition provisions of a treaty. This action was challenged in Congress on the ground that no specific statute prescribed the method to be used in executing the treaty. John Marshall, then a member of the House of Representatives, made the following argument in support of the President's action:

"The treaty, which is a law, enjoins the performance of a particular object. The person who is to perform this object is marked out by the Constitution, since the person is named who conducts the foreign intercourse, and is to take care that the laws be faithfully executed. The means by which it is to be performed, the force of the nation, are in the hands of this person. Ought not this person to perform the object, although the particular mode of using the means has not been prescribed ? Congress, unquestionably, may prescribe the mode, and Congress may devolve on others the whole execution of the contract; but, till this be done, it seems the duty of the Executive department to execute the contract

by any means it possesses.” 32 Efforts in Congress to discredit the President for his action failed. Almost a century later, this Court had

31 IV Wor of Hamilton (Lodge ed. 1904) 432-444.

32 10 Annals of Congress 596, 613-614 (1800); also printed in 5 Wheat., App. pp. 3, 27 (1820).

33 10 Annals of Congress 619 (1800).

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occasion to give its express approval to "the masterly and conclusive argument of John Marshall.” 34

Jefferson's initiative in the Louisiana Purchase, the Monroe Doctrine, and Jackson's removal of Government deposits from the Bank of the United States further serve to demonstrate by deed what the Framers described by word when they vested the whole of the executive power in the President.

Without declaration of war, President Lincoln took energetic action with the outbreak of the War Between the States. He summoned troops and paid them out of the Treasury without appropriation therefor. He proclaimed a naval blockade of the Confederacy and seized ships violating that blockade. Congress, far from denying the validity of these acts, gave them express approval. The most striking action of President Lincoln was the Emancipation Proclamation, issued in aid of the successful prosecution of the War Between the States, but wholly without statutory authority.35

In an action furnishing a most apt precedent for this case, President Lincoln without statutory authority directed the seizure of rail and telegraph lines leading to Washington.36 Many months later, Congress recognized and confirmed the power of the President to seize railroads and telegraph lines and provided criminal penalties for interference with Government operation.37 This Act did not confer on the President any additional powers of seizure. Congress plainly rejected the view that the President's acts had been without legal sanction until

34 Fong Yue Ting v. United States, 149 U. S. 698, 714 (1893).

35 See Prize Cases, 2 Black 635 (1863); Randall, Constitutional Problems Under Lincoln (1926); Corwin, The President: Office and Powers (1948 ed.), 277–281.

36 War of the Rebellion, Official Records of the Union and Confederate Armies, Series I, Vol. II (1880), pp. 603-604.

37 12 Stat. 334 (1862).

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