Article II, Section 2, Clause 1 — Military, Administrative, and Clemency

ArtII.S2.C1.1.1 Historical Background on Commander in Chief Clause

Surprisingly little discussion of the Commander in Chief Clause occurred in the Constitutional Convention or in the ratifying debates. From the evidence available, it appears that the Framers vested the duty in the President because experience in the Continental Congress had disclosed the expediency of vesting command in a single official¹ and because the lesson of English history was that danger lurked in vesting command in a person separate from the responsible political leaders.²

Early cases and commentary emphasized the purely military aspects of the Commander in Chiefship. Alexander Hamilton said the office “would amount to nothing more than the supreme command and direction of the Military and naval forces, as first general and admiral of the confederacy.”³ In his Commentaries on the Constitution of the United States, Justice Joseph Story wrote of the debates accompanying the ratification of the Constitution, stating: “The propriety of admitting the president to be commander in chief, so far as to give orders, and have a general superintendency, was admitted.”⁴ Justice Story took note of the debate regarding the propriety of the President taking command of the armed forces in person, explaining the apparent consensus. He stated: “Though the president might, there was no necessity that he should, take the command in person; and there was no probability that he would do so, except in extraordinary emergencies, and when he was possessed of superior military talents.”⁵

The Supreme Court did not think it apparent that the Commander in Chief Power necessarily entailed all of the attributes available to a sovereign under the laws and usages of war, even in cases of war declared by Congress.⁶ The Court held that a declaration of war, by itself, did not empower the President to confiscate enemy property.⁷

Chief Justice John Marshall, while suggesting that the President might, during the limited war authorized against France, have the authority as Commander in Chief to issue orders pertaining to the capture of certain vessels in the absence of legislation, denied the validity of such an order where Congress had enacted a contradictory staute.⁸ A U.S. commander had captured, pursuant to presidential instructions, what he believed was a U.S. merchant ship bound from a French port, allegedly carrying contraband material.⁹ Congress had, however, enacted the Non-Intercourse Act, which only provided for the seizure of such vessels bound to French ports.¹⁰ The Court held that the President’s instructions exceeded the authority granted by Congress and were not to be given the force of law, and the captain could be held liable for damages.¹¹

In 1850, Chief Justice Roger Taney, writing for the Supreme Court, explained the President’s power during wartime:

His duty and his power are purely military. As Commander in Chief, he is authorized to

direct the movements of the naval and military forces placed by law at his command,

and to employ them in the manner he may deem most effectual to harass and conquer

and subdue the enemy. He may invade the hostile country, and subject it to the

sovereignty and authority of the United States. But his conquests do not enlarge the

boundaries of this Union, nor extend the operation of our institutions and laws beyond

the limits before assigned to them by the legislative power.¹²

Justice Taney continued and distinguished the role of the Commander in Chief and that of the British King:

But in the distribution of political power between the great departments of

government, there is such a wide difference between the power conferred on the

President of the United States, and the authority and sovereignty which belong to the

English crown, that it would be altogether unsafe to reason from any supposed

resemblance between them, either as regards conquest in war, or any other subject

where the rights and powers of the executive arm of the government are brought into

question.¹³

Even after the Civil War, a powerful minority of the Court, led by Chief Justice Salmon Chase, described the role of President as Commander in Chief simply as “the command of the forces and the conduct of campaigns.”¹⁴

ArtII.S2.C1.1.2 Prize Cases and Commander in Chief Clause

The basis for a broader conception of the role of Commander in Chief was laid in certain early acts of Congress authorizing the President to employ military force in the execution of the laws.¹ In his famous message to Congress on July 4, 1861,² Abraham Lincoln advanced the claim that the “war power” was his for the purpose of suppressing rebellion, and in the Prize Cases³ of 1863 a divided Court sustained this theory. The immediate issue was the validity of the blockade of the Southern ports that the President had established following the attack on Fort Sumter.⁴ The argument was advanced that, in order for a blockade to be valid, it must be established during an incident of a “public war” validly declared, and that only Congress could, by virtue of its power “to declare war,” constitutionally impart to a military situation this character and scope.⁵ Speaking for the majority of the Court, Justice Robert Grier answered:

If a war be made by invasion of a foreign nation, the President is not only authorized

but bound to resist force by force. He does not initiate the war, but is bound to accept

the challenge without waiting for any special legislative authority. And whether the

hostile party be a foreign invader, or States organized in rebellion, it is none the less a

war, although the declaration of it be ‘unilateral.’⁶

To support this principle with historical precedent, Justice Grier explained that the battles of Palo Alto and Resaca de la Palma had been fought before the enactment of the Act of Congress of May 13, 1846, “which recognized ‘a state of war as existing by the act of the Republic of Mexico.’”⁷ Justice Grier stated, “This act not only provided for the future prosecution of the war, but was itself a vindication and ratification of the Act of the President in accepting the challenge without a previous formal declaration of war by Congress.”⁸

The Court might have rested its opinion wholly on the President’s authorities under statute to suppress insurrections and repel invasions,⁹ coupled with Congress’s ratification of the President’s actions,¹⁰ but it instead emphasized Executive power and duty:

The President was bound to meet it in the shape it presented itself, without waiting for

Congress to baptize it with a name; and no name given to it by him or them could

change the fact . . . .

Whether the President in fulfilling his duties, as Commander in-chief, in suppressing

an insurrection, has met with such armed hostile resistance, and a civil war of such

alarming proportions as will compel him to accord to them the character of

belligerents, is a question to be decided by him, and this Court must be governed by the

decisions and acts of the political department of the government to which this power

was entrusted. ‘He must determine what degree of force the crisis demands.’ The

proclamation of blockade is itself official and conclusive evidence to the Court that a

state of war existed which demanded and authorized a recourse to such a measure,

under the circumstances peculiar to the case.¹¹

In brief, the powers that may be claimed for the President under the Commander in Chief Clause at a time of widespread insurrection were equated with his powers under the clause at a time when the United States is engaged in a formally declared foreign war.¹² No attention was given the fact that Lincoln had asked Congress to ratify and confirm his acts, which Congress promptly had,¹³ with the exception of his suspension of habeas corpus, a power that many attributed to the President in the situation then existing, by virtue of his duty to take care that the laws be faithfully executed.¹⁴ On the other hand, where Lincoln’s proclamation suspending habeas corpus varied from legislation later enacted to ratify it, the Court looked to the statute¹⁵ rather than to the proclamation¹⁶ to determine the breadth of its application in the case of Ex parte Milligan.¹⁷

In a partial concurrence to the majority’s decision in Milligan, Chief Justice Chase described the allocation of war powers as follows:

The power to make the necessary laws is in Congress; the power to execute in the

President. Both powers imply many subordinate and auxiliary powers. Each includes

all authorities essential to its due exercise. But neither can the President, in war more

than in peace, intrude upon the proper authority of Congress, nor Congress upon the

proper authority of the President . . . .¹⁸

The Chief Justice described the Commander in Chief Power as entailing “the command of the forces and the conduct of campaigns,”¹⁹ but nevertheless agreed that military trials of civilians accused of violating the law of war in Union states were invalid without congressional approval, despite the government’s assertion that the “[Commander in Chief ’s] power to make an effectual use of his forces [must include the] power to arrest and punish one who arms men to join the enemy in the field against him.”²⁰

ArtII.S2.C1.1.3 Wartime Powers of President in World War II

In his message to Congress of September 7, 1942, in which he demanded that Congress repeal certain provisions of the Emergency Price Control Act,¹ President Franklin Roosevelt formulated his conception of his powers as President in wartime to act inconsistently with congressional statute:

I ask the Congress to take this action by the first of October. Inaction on your part by

that date will leave me with an inescapable responsibility to the people of this country

to see to it that the war effort is no longer imperiled by threat of economic chaos.

In the event that the Congress should fail to act, and act adequately, I shall accept the

responsibility, and I will act.

At the same time that farm prices are stabilized, wages can and will be stabilized also.

This I will do.

The President has the powers, under the Constitution and under Congressional acts, to

take measures necessary to avert a disaster which would interfere with the winning of

the war.

I have given the most thoughtful consideration to meeting this issue without further

reference to the Congress. I have determined, however, on this vital matter to consult

with the Congress . . . .

The American people can be sure that I will use my powers with a full sense of my

responsibility to the Constitution and to my country. The American people can also be

sure that I shall not hesitate to use every power vested in me to accomplish the defeat

of our enemies in any part of the world where our own safety demands such defeat.

When the war is won, the powers under which I act automatically revert to the

people—to whom they belong.²

While congressional compliance with the President’s demand rendered unnecessary an effort on his part to amend the Price Control Act, there were other matters as to which he repeatedly took action within the normal field of congressional powers, not only during the war, but in some instances prior to it. In exercising both the powers which he claimed as Commander in Chief and those which Congress conferred upon him to meet the emergency, President Roosevelt employed new emergency agencies, created by himself and responsible directly to him, rather than the established departments or existing independent regulatory agencies.³

ArtII.S2.C1.1.4 Evacuation of the West Coast Japanese

On February 19, 1942, President Roosevelt issued an Executive Order, “by virtue of the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy,” providing, as a safeguard against subversion and sabotage, power for his military commanders to designate areas from which “any person” could be excluded or removed and to set up facilities for such persons elsewhere.¹ Pursuant to this order, approximately 112,000 residents of the Western states, all of Japanese descent and more than two out of every three of whom were natural-born citizens, were removed from their homes and shipped to temporary camps and later into “relocation centers” in several states.²

It was apparently the Administration’s original intention to rely on the general principle of military necessity and the power of the Commander in Chief in wartime as authority for the relocations.³ Before any action was taken under the order, Congress ratified and adopted it by the Act of March 21, 1942,⁴ by which it was made a misdemeanor to knowingly enter, remain in, or leave prescribed military areas contrary to the orders of the Secretary of War or of the commanding officer of the area. The cases which subsequently arose in consequence of the order were decided under the order plus the Act. The question at issue, said Chief Justice Harlan Stone for the Court, “is not one of Congressional power to delegate to the President the promulgation of the Executive Order, but whether, acting in cooperation, Congress and the Executive have constitutional . . . [power] to impose the curfew restriction here complained of.”⁵ This question was answered in the affirmative, as was the similar question later raised by an exclusion order.⁶ These two opinions, however, skirted the question of internment in relocation centers. On that question, the Court granted habeas relief to an “admittedly loyal citizen” of Japanese descent on the basis that internment was unsupported by the Executive Order or by statute.⁷ Ultimately, the Court abrogated the Korematsu decision, holding that “[t]he forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority.”⁸

ArtII.S2.C1.1.5 The President and Labor Relations in World War II

The most important segment of the home front regulated by what were in effect presidential edicts was the field of labor relations. Exactly six months before Pearl Harbor, on June 7, 1941, President Franklin Roosevelt, citing his proclamation thirteen days earlier of an unlimited national emergency, issued an Executive Order seizing the North American Aviation Plant at Inglewood, California, where, on account of a strike, production was at a standstill.¹ Attorney General Robert Jackson justified the seizure as growing out of the “duty constitutionally and inherently rested upon the President to exert his civil and military as well as his moral authority to keep the defense efforts of the United States a going concern,” as well as “to obtain supplies for which Congress has appropriated the money, and which it has directed the President to obtain.”² Other seizures followed, and on January 12, 1942, President Roosevelt, by Executive Order 9017, created the National War Labor Board. The order declared in part, “by reason of the state of war declared to exist by joint resolutions of Congress, . . . the national interest demands that there shall be no interruption of any work which contributes to the effective prosecution of the war; and . . . as a result of a conference of representatives of labor and industry which met at the call of the President on December 17, 1941, it has been agreed that for the duration of the war there shall be no strikes or lockouts, and that all labor disputes shall be settled by peaceful means, and that a National War Labor Board be established for a peaceful adjustment of such disputes.”³ In this field, too, Congress intervened by means of the War Labor Disputes Act of June 25, 1943,⁴ which authorized plant seizures in support of war efforts but which, however, still left ample basis for presidential activity of a legislative character.⁵

ArtII.S2.C1.1.6 Presidential Directives and Sanctions in World War II

To implement his directives as Commander in Chief in wartime, and especially those which he issued in governing labor disputes, President Franklin Roosevelt often resorted to “sanctions,” which may be described as penalties lacking statutory authorization. Ultimately, the President sought to put sanctions by the National War Labor Board on a systematic basis.¹ The order empowered the Director of Economic Stabilization, on receiving a report from the Board that someone was not complying with its orders, to issue “directives” to the appropriate department or agency requiring that privileges, benefits, rights, or preferences enjoyed by the noncomplying party be withdrawn.²

Sanctions were also occasionally employed by statutory agencies, such as the Office of Price Administration (OPA), to supplement the penal provisions of the Emergency Price Control Act of January 30, 1942.³ In Steuart & Bro. v. Bowles,⁴ the Supreme Court had the opportunity to regularize this type of executive emergency legislation. Here, a retail dealer in fuel oil was charged with having violated a rationing order of OPA by obtaining large quantities of oil from its supplier without surrendering ration coupons, by delivering many thousands of gallons of fuel oil without requiring ration coupons, and so on, and was prohibited by the agency from receiving oil for resale or transfer for the ensuing year. The offender conceded the validity of the rationing order in support of which the suspension order was issued but challenged the validity of the latter as imposing a penalty that Congress had not enacted and asked the district court to enjoin it.

The court refused to do so⁵ and was sustained by the Supreme Court in its position. Justice William Douglas wrote for the Court:

“[W]ithout rationing, the fuel tanks of a few would be full; the fuel tanks of many would

be empty. Some localities would have plenty; communities less favorably situated

would suffer. Allocation or rationing is designed to eliminate such inequalities and to

treat all alike who are similarly situated. But middlemen—wholesalers and

retailers—bent on defying the rationing system could raise havoc with it. These

middlemen are the chief if not the only conduits between the source of limited supplies

and the consumers. From the viewpoint of a rationing system a middleman who

distributes the product in violation and disregard of the prescribed quotas is an

inefficient and wasteful conduit. Certainly we could not say that the President would

lack the power under this Act to take away from a wasteful factory and route to an

efficient one a precious supply of material needed for the manufacture of articles of

war. From the point of view of the factory owner from whom the materials were

diverted the action would be harsh . . . . But in times of war the national interest

cannot wait on individual claims to preference. Yet if the President has the power to

channel raw materials into the most efficient industrial units and thus save scarce

materials from wastage it is difficult to see why the same principle is not applicable to

the distribution of fuel oil.”⁶

Sanctions not expressly supported by statue were, therefore, constitutional when the deprivations they wrought were a reasonably implied amplification of the substantive power which they supported and were directly conservative of the interests which this power was created to protect and advance. It is certain, however, that sanctions not uncommonly exceeded this pattern.⁷

ArtII.S2.C1.1.7 Treatment of Enemy Combatants and Nazi Saboteurs

In 1942 eight youths, seven Germans and one American, all of whom had received training in sabotage in Berlin, were brought to this country aboard two German submarines and put ashore, one group on the Florida coast, the other on Long Island, with the idea that they would proceed forthwith to practice their art on American factories, military equipment, and installations. Making their way inland, the saboteurs were soon picked up by the FBI, some in New York, others in Chicago, and turned over to the Provost Marshal of the District of Columbia. On July 2, the President appointed a military commission to try them for violation of the laws of war, to wit: for not wearing fixed emblems to indicate their combatant status.¹ In the midst of the trial, the accused petitioned the Supreme Court and the United States District Court for the District of Columbia for leave to bring habeas corpus proceedings. Their argument embraced the contentions: (1) that the offense charged against them was not known to the laws of the United States; (2) that it was not one arising in the land and naval forces; and (3) that the tribunal trying them had not been constituted in accordance with the requirements of the Articles of War.

The first argument the Court met as follows: The act of Congress in providing for the trial before military tribunals of offenses against the law of war is sufficiently definite, although Congress has not undertaken to codify or mark the precise boundaries of the law of war, or to enumerate or define by statute all the acts which that law condemns. “. . . [T]hose who during time of war pass surreptitiously from enemy territory into . . . [that of the United States], discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants punishable as such by military commission.”² The second argument it disposed of by showing that petitioners’ case was of a kind that was never deemed to be within the terms of the Fifth and Sixth Amendments, citing in confirmation of this position the trial of Major Andre.³ The third contention the Court overruled by declining to draw the line between the powers of Congress and the President in the premises,⁴ thereby, in effect, attributing to the President the right to amend the Articles of War in a case of the kind before the Court ad libitum.⁵

The Court also rejected the jurisdictional challenge by one of the saboteurs on the basis of his claim to U.S. citizenship, finding U.S. citizenship wholly irrelevant to the determination of whether a wartime captive is an “enemy belligerent” within the meaning of the law of war.⁶

ArtII.S2.C1.1.8 World War II War Crimes Tribunals

As a matter of fact, in General Tomoyuki Yamashita’s case,¹ which was brought after the termination of hostilities for alleged “war crimes,” the Court abandoned its restrictive conception altogether. In the words of Justice John Rutledge’s dissenting opinion in this case:

The difference between the Court’s view of this proceeding and my own comes down in

the end to the view, on the one hand, that there is no law restrictive upon these

proceedings other than whatever rules and regulations may be prescribed for their

government by the executive authority or the military and, on the other hand, that the

provisions of the Articles of War, of the Geneva Convention and the Fifth Amendment

apply.²

And the adherence of the United States to the Charter of London in August 1945, under which the Nazi leaders were brought to trial, is explicable by the same theory. These individuals were charged with the crime of instigating aggressive war, which at the time of its commission was not a crime either under international law or under the laws of the prosecuting governments. It must be presumed that the President is not in his capacity as Supreme Commander bound by the prohibition in the Constitution of ex post facto laws, nor did international law clearly forbid ex post facto laws.³

ArtII.S2.C1.1.9 Postwar Period and Commander in Chief Clause

The end of active hostilities did not terminate either the emergency or the Federal Government’s response to it. President Harry Truman proclaimed the termination of hostilities on December 31, 1946,¹ and, in July 1947, Congress enacted a joint resolution that repealed a great variety of wartime statutes and set termination dates for others.² Signing the resolution, the President said that the emergencies declared in 1939 and 1940 continued to exist and that it was “not possible at this time to provide for terminating all war and emergency powers.”³ The hot war was giving way to the Cold War.

The postwar period was a time of reaction against the wartime exercise of power by President Franklin Roosevelt, and President Truman was not permitted the same liberties. The Supreme Court signaled this reaction when it struck down the President’s action in seizing the steel industry while it was struck during the Korean War.⁴

Nonetheless, the long period of the Cold War and of active hostilities in Korea and Indochina, in addition to the issue of the use of troops in the absence of congressional authorization, further created conditions for consolidation of powers in the President. In particular, a string of declarations of national emergencies, most, in whole or part, under the Trading with the Enemy Act,⁵ undergirded the exercise of much presidential power. In the storm of response to the Vietnamese conflict, here, too, Congress reasserted legislative power to curtail what it viewed as excessive executive power, limiting the Trading with the Enemy Act to wartime and enacting the International Emergency Economic Powers Act,⁶ which delegated most of the same range of powers to the President, but which changed the scope of the power delegated to declare national emergencies.⁷ Congress also passed the National Emergencies Act,⁸ prescribing procedures for the declaration of national emergencies, for their termination, and for presidential reporting to Congress in connection with national emergencies. To end the practice of declaring national emergencies for an indefinite duration, Congress provided that any emergency not otherwise terminated would expire one year after its declaration unless the President published in the Federal Register and transmitted to Congress a notice that the emergency would continue in effect.⁹

ArtII.S2.C1.1.10 Use of Troops Overseas and Congressional Authorization

In 1912, the Department of State published a memorandum prepared by its Solicitor which set out to justify the Right to Protect Citizens in Foreign Countries by Landing Forces.¹ In addition to the justification, the memorandum summarized forty-seven instances in which force had been used, in most of them without any congressional authorization.² Twice revised and reissued, the memorandum was joined by a 1928 independent study and a 1945 work by a former government official in supporting conclusions that drifted away from the original justification of the use of United States forces abroad to the use of such forces at the discretion of the President and free from control by Congress.³

New lists and revised arguments were published to support the actions of President Harry Truman in sending troops to Korea and of Presidents John Kennedy and Lyndon Johnson in sending troops first to Vietnam and then to Indochina generally,⁴ and new lists have since been propounded.⁵ The great majority of the instances cited involved fights with pirates, landings of small naval contingents on barbarous or semibarbarous coasts to protect commerce, the dispatch of small bodies of troops to chase bandits across the Mexican border, and the like, and some incidents supposedly without authorization from Congress did in fact have underlying statutory or other legislative authorization.⁶ Some instances, e.g., President James Polk’s use of troops to precipitate war with Mexico in 1846, President Ulysses Grant’s attempt to annex the Dominican Republic, President William McKinley’s dispatch of troops into China during the Boxer Rebellion, involved considerable exercises of presidential power, but in general purposes were limited and congressional authority was sought for the use of troops against a sovereign state or in such a way as to constitute war. The early years of the twentieth century saw the expansion in the Caribbean and Latin America both of the use of troops for the furthering of what was perceived to be our national interests and of the power of the President to deploy the military force of the United States without congressional authorization.⁷

The pre-war actions of Presidents Woodrow Wilson and Franklin Roosevelt advanced in substantial degrees the fact of presidential initiative, although the theory did not begin to catch up with the fact until the “Great Debate” over the commitment of troops by the United States to Europe under the Atlantic Pact. While congressional authorization was obtained, that debate, the debate over the United Nations charter, and the debate over Article 5 of the North Atlantic Treaty of 1949, declaring that “armed attack” against one signatory was to be considered as “an attack” against all signatories, provided the occasion for the formulation of a theory of independent presidential power to use the armed forces in the national interest at his discretion.⁸ Thus, Secretary of State Dean Acheson told Congress: “Not only has the President the authority to use the armed forces in carrying out the broad foreign policy of the United States implementing treaties, but it is equally clear that this authority may not be interfered with by the Congress in the exercise of powers which it has under the Constitution.”⁹

President Truman did not seek congressional authorization before sending troops to Korea, and subsequent Presidents similarly acted on their own in putting troops into many foreign countries, including the Dominican Republic, Lebanon, and most notably Indochina.¹⁰ Eventually, public opposition precipitated another constitutional debate whether the President had the authority to commit troops to foreign combat without the approval of Congress, culminating in the enactment of the War Powers Resolution.¹¹ The Resolution did little to inhibit Presidents from sending troops abroad without prior congressional authorization, and the Supreme Court has not squarely addressed the issue.¹²

ArtII.S2.C1.1.11 Presidential Power and Commander in Chief Clause

The President’s power with regard to the armed forces has long been debated. In defense of executive action in Indochina, the Legal Adviser of the State Department, in a widely circulated document, contended:

Under the Constitution, the President, in addition to being Chief Executive, is

Commander in Chief of the Army and Navy. He holds the prime responsibility for the

conduct of United States foreign relations. These duties carry very broad powers,

including the power to deploy American forces abroad and commit them to military

operations when the President deems such action necessary to maintain the security

and defense of the United States.

In 1787 the world was a far larger place, and the framers probably had in mind attacks

upon the United States. In the 20th century, the world has grown much smaller. An

attack on a country far from our shores can impinge directly on the Nation’s security.

In the SEATO treaty, for example, it is formally declared that an armed attack against

Viet Nam would endanger the peace and security of the United States.

Under our Constitution it is the President who must decide when an armed attack has

occurred. He has also the constitutional responsibility for determining what measures

of defense are required when the peace and safety of the United States are

endangered. If he considers that deployment of U.S. forces to South Viet Nam is

required, and that military measures against the source of Communist aggression in

North Viet Nam are necessary, he is constitutionally empowered to take those

measures.¹

Opponents of such expanded presidential powers have contended, however, that the authority to initiate war was not divided between the Executive and Congress but was vested exclusively in Congress. The President had the duty and the power to repeal sudden attacks and act in other emergencies, and in his role as Commander in Chief he was empowered to direct the armed forces for any purpose specified by Congress.² Though Congress asserted itself in some respects, it never really managed to confront the President’s power with any sort of effective limitation, until the 1970s.

ArtII.S2.C1.1.12 Congressional Control Over President’s Discretion

Over the President’s veto, Congress enacted in 1973 the War Powers Resolution,¹ designed to redistribute the war powers between the President and Congress. Although ambiguous in some respects, the Resolution appears to define restrictively the President’s powers, to require him to report fully to Congress upon the introduction of troops into foreign areas, to specify a maximum time limitation on the engagement of hostilities absent affirmative congressional action, and to provide a means for Congress to require cessation of hostilities in advance of the time set.

The Resolution states that the President’s power to commit United States troops into hostilities, or into situations of imminent involvement in hostilities, is limited to instances of (1) a declaration of war, (2) a specific statutory authorization, or (3) a national emergency created by an attack on the United States, its territories or possessions, or its armed forces.² In the absence of a declaration of war, a President must within 48 hours report to Congress whenever he introduces troops (1) into hostilities or situations of imminent hostilities, (2) into a foreign nation while equipped for combat, except in certain nonhostile situations, or (3) in numbers which substantially enlarge United States troops equipped for combat already located in a foreign nation.³ If the President introduces troops in the first of these three situations, then he must terminate the use of troops within 60 days after his report was submitted or was required to be submitted to Congress, unless Congress (1) has declared war, (2) has extended the period, or (3) is unable to meet as a result of an attack on the United States, but the period can be extended another 30 days by the President’s certification to Congress of unavoidable military necessity respecting the safety of the troops.⁴ Congress may through the passage of a concurrent resolution require the President to remove the troops sooner.⁵ The Resolution further states that no legislation, whether enacted prior to or subsequent to passage of the Resolution will be taken to empower the President to use troops abroad unless the legislation specifically does so and that no treaty may so empower the President unless it is supplemented by implementing legislation specifically addressed to the issue.⁶

Aside from its use as a rhetorical device, the War Powers Resolution has been of little worth in reordering presidential-congressional relations in the years since its enactment. In general, Presidents operating under it have expressly or implicitly considered it to be at least in part an unconstitutional infringement on presidential powers,⁷ and on each occasion of use abroad of United States troops the President in reporting to Congress has done so “consistent[ly] with” the reporting section but not pursuant to the provision.⁸ Upon the invasion of Kuwait by Iraqi troops in 1990, President George H.W. Bush sought not congressional authorization but a United Nations Security Council resolution authorizing the use of force by member Nations. Only at the last moment did the President seek authorization from Congress, he and his officials contending that he had the power to act unilaterally.⁹ After intensive debate, Congress voted, 250 to 183 in the House of Representatives and 53 to 46 in the Senate, to authorize the President to use United States troops pursuant to the U.N. resolution and purporting to bring the act within the context of the War Powers Resolution.¹⁰

Presidents have continued to claim independent authority to commit U.S. Armed Forces to involvements abroad absent any congressional participation other than consultation and after-the-fact financing. In 1994, for example, President Bill Clinton based his authority to order the participation of U.S. forces in NATO actions in Bosnia-Herzegovina on his “constitutional authority to conduct U.S. foreign relations” and as his role as Commander in Chief,¹¹ and protested efforts to restrict the use of military forces there and elsewhere as an improper and possibly unconstitutional limitation on his “command and control” of U.S. forces.¹² In March 2011, President Barack Obama ordered U.S. military forces to take action as part of an international coalition to enforce U.N. Security Council Resolution 1973, which authorized U.N. Member States to take all necessary measures (other than through military occupation) to protect civilians from attacks by the Libyan government and to establish a no-fly zone over the country. Although these operations had not been authorized by legislation, the Executive Branch submitted a report to Congress which claimed that the President has the “constitutional authority, as Commander in Chief and Chief Executive and pursuant to his foreign affairs powers, to direct such limited military operations abroad.”¹³

By contrast, President George W. Bush sought a resolution from Congress in 2002 to approve the eventual invasion of Iraq before seeking a U.N. Security Council resolution, all the while denying that express authorization from Congress, or for that matter, the U.N. Security Council, was necessary to renew hostilities in Iraq. Prior to adjourning for its midterm elections, Congress passed the Authorization for Use of Military Force against Iraq Resolution of 2002,¹⁴ which it styled as “specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.” On signing the measure, the President noted that he had sought “an additional resolution of support” from Congress, and expressed appreciation for receiving that support, but stated, “my request for it did not, and my signing this resolution does not, constitute any change in the long-standing positions of the executive branch on either the President’s constitutional authority to use force to deter, prevent, or respond to aggression or other threats to U.S. interests or on the constitutionality of the War Powers Resolution.”¹⁵ In the Bush administration’s view, the primary benefit of receiving authorization from Congress seems to have been the message of political unity it conveyed to the rest of the world rather than the fulfillment of any constitutional requirements.

Although there is recurrent talk within Congress and without as to amending the War Powers Resolution to strengthen it, no consensus has emerged, and there is little evidence that there exists within Congress the resolve to exercise the responsibility concomitant with strengthening it.¹⁶

ArtII.S2.C1.1.13 President as Commander of Armed Forces

While the President customarily delegates supreme command of the forces in active service, there is no constitutional reason why he should do so, and he has been known to resolve personally important questions of military policy. President Abraham Lincoln early in 1862 issued orders for a general advance in the hopes of stimulating General George McClellan to action; President Woodrow Wilson in 1918 settled the question of an independent American command on the Western Front; President Harry Truman in 1945 ordered that the bomb be dropped on Hiroshima and Nagasaki.¹ As against an enemy in the field, the President possesses all the powers which are accorded by international law to any supreme commander. “He may invade the hostile country, and subject it to the sovereignty and authority of the United States.”² In the absence of attempts by Congress to limit his or her power, the President may establish and prescribe the jurisdiction and procedure of military commissions, and of tribunals in the nature of such commissions, in territory occupied by Armed Forces of the United States, and his or her authority to do this sometimes survives cessation of hostilities.³ The President may employ secret agents to enter the enemy’s lines and obtain information as to its strength, resources, and movements.⁴ He or she may, at least with the assent of Congress, authorize commercial intercourse with the enemy.⁵ The President may also requisition property and compel services from American citizens and friendly aliens who are situated within the theater of military operations when necessity requires, thereby incurring for the United States the obligation to render “just compensation.”⁶ By the same warrant, a President may bring hostilities to a conclusion by arranging an armistice, stipulating conditions that may determine to a great extent the ensuing peace.⁷ The President may not, however, effect a permanent acquisition of territory,⁸ though he or she may govern recently acquired territory until Congress sets up a more permanent regime.⁹

The President is the ultimate tribunal for the enforcement of the rules and regulations that Congress adopts for the government of the forces, and that are enforced through courts-martial.¹⁰ Indeed, until 1830, courts-martial were convened solely on the President’s authority as Commander in Chief.¹¹ Such rules and regulations are, moreover, it seems, subject in wartime to his or her amendment at discretion.¹² Similarly, the power of Congress to “make rules for the government and regulation of the land and naval forces” (Art. I, § 8, cl. 14) did not prevent President Lincoln from promulgating, in April 1863, a code of rules to govern the conduct in the field of the armies of the United States, which was prepared at his instance by a commission headed by Francis Lieber and which later became the basis of all similar codifications both here and abroad.¹³ One important power that the President lacks is that of choosing his or her subordinates, whose grades and qualifications are determined by Congress and whose appointment is ordinarily made by and with the advice and consent of the Senate, though undoubtedly Congress could if it wished vest their appointment in “the President alone.”¹⁴ Also, the President’s power to dismiss an officer from the service, once unlimited, is today confined by statute in time of peace to dismissal pursuant to a sentence of a general court-martial or in commutation of a sentence of a court-martial.¹⁵ But the provision is not regarded by the Court as preventing the President from displacing an officer of the Army or Navy by appointing with the advice and consent of the Senate another person in his or her place.¹⁶ Congress has not limited the President’s power of dismissal in time of war.

ArtII.S2.C1.1.14 Martial Law Generally

Martial law can be validly and constitutionally established by supreme political authority in wartime as held in Luther v. Borden.¹ In Luther, the Court held that state declarations of martial law were conclusive and therefore not subject to judicial review.² In this case, the Court found that the Rhode Island legislature had been within its rights in resorting to the rights and usages of war in combating insurrection in that state.³ The decision in the Prize Cases,⁴ although not dealing directly with the subject of martial law, gave national scope to the same general principle in 1863.

After the Civil War, a divided Court, in Ex parte Milligan,⁵ pronounced President Abraham Lincoln’s suspension of the writ of habeas corpus in September 1863 void. The salient passage of the Court’s opinion bearing on this point is the following:

“If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to

administer criminal justice according to law, then, on the theater of active military

operations, where war really prevails, there is a necessity to furnish a substitute for

the civil authority, thus overthrown, to preserve the safety of the army and society; and

as no power is left but the military, it is allowed to govern by martial rule until the laws

can have their free course. As necessity creates the rule, so it limits its duration; for, if

this government is continued after the courts are reinstated, it is a gross usurpation of

power. Martial rule can never exist where the courts are open, and in proper and

unobstructed exercise of their jurisdiction. It is also confined to the locality of actual

war.”⁶

Four Justices, speaking by Chief Justice Salmon Chase, while holding Milligan’s trial to have been void because it violated the Act of March 3, 1863, governing the custody and trial of persons who had been deprived of the habeas corpus privilege, declared their belief that Congress could have authorized Milligan’s military trial. The Chief Justice wrote:

Congress has the power not only to raise and support and govern armies but to declare

war. It has, therefore, the power to provide by law for carrying on war. This power

necessarily extends to all legislation essential to the prosecution of war with vigor and

success, except such as interferes with the command of the forces and the conduct of

campaigns. That power and duty belong to the President as Commander in Chief. Both

these powers are derived from the Constitution, but neither is defined by that

instrument. Their extent must be determined by their nature, and by the principles of

our institutions . . . .

We by no means assert that Congress can establish and apply the laws of war where no

war has been declared or exists.

Where peace exists the laws of peace must prevail. What we do maintain is, that when

the nation is involved in war, and some portions of the country are invaded, and all are

exposed to invasion, it is within the power of Congress to determine in what states or

districts such great and imminent public danger exists as justifies the authorization of

military tribunals for the trial of crimes and offences against the discipline or security

of the army or against the public safety.⁷

In short, only Congress can authorize the substitution of military tribunals for civil tribunals for the trial of offenses; and Congress can do so only in wartime.

Early in the twentieth century, however, the Court appeared to retreat from its stand in Milligan insofar as it held in Moyer v. Peabody⁸ that:

“[T]he Governor’s declaration that a state of insurrection existed is conclusive of that

fact. . . . [T]he plaintiff ’s position is that he has been deprived of his liberty without

due process of law. But it is familiar that what is due process of law depends on

circumstances. . . . So long as such arrests are made in good faith and in honest belief

that they are needed in order to head the insurrection off, the Governor is the final

judge and cannot be subjected to an action after he is out of office on the ground that he

had not reasonable ground for his belief.”⁹

The “good faith” test of Moyer, however, was superseded by the “direct relation” test of Sterling v. Constantin,¹⁰ where the Court made it very clear that “[i]t does not follow that every sort of action the Governor may take, no matter how justified by the exigency or subversive of private right and the jurisdiction of the courts, otherwise available, is conclusively supported by mere executive fiat. What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.”¹¹

ArtII.S2.C1.1.15 Martial Law in Hawaii

The question of the constitutional status of martial law was raised again in World War II by the proclamation of Governor Joseph Poindexter of Hawaii, on December 7, 1941, suspending the writ of habeas corpus and conferring on the local commanding General of the Army all his own powers as governor and also “all of the powers normally exercised by the judicial officers of this territory during the present emergency and until the danger of invasion is removed.” Two days later the Governor’s action was approved by President Franklin Roosevelt. The regime which the proclamation set up continued with certain abatements until October 24, 1944.

By section 67 of the Organic Act of April 30, 1900,¹ the Territorial Governor was authorized “in case of rebellion or invasion, or imminent danger thereof, when the public safety requires it, [to] suspend the privilege of the writ of habeas corpus, or place the Territory, or any part thereof, under martial law until communication can be had with the President and his decision thereon made known.” By section 5 of the Organic Act, “the Constitution shall have the same force and effect within the said Territory as elsewhere in the United States.”² In a brace of cases which reached it in February 1945, but which it contrived to postpone deciding until February 1946,³ the Court, speaking by Justice Hugo Black, held that the term “martial law” as employed in the Organic Act, “while intended to authorize the military to act vigorously for the maintenance of an orderly civil government and for the defense of the Islands against actual or threatened rebellion or invasion, was not intended to authorize the supplanting of courts by military tribunals.”⁴

The Court relied on the majority opinion in Ex parte Milligan. Chief Justice Harlan Stone concurred in the result. “I assume also,” he said, “that there could be circumstances in which the public safety requires, and the Constitution permits, substitution of trials by military tribunals for trials in the civil courts,”⁵ but added that the military authorities themselves had failed to show justifying facts in this instance.⁶ Justice Harold Burton, speaking for himself and Justice Felix Frankfurter, dissented. He stressed the importance of Hawaii as a military outpost and its constant exposure to the danger of fresh invasion.⁷ He warned that “courts must guard themselves with special care against judging past military action too closely by the inapplicable standards of judicial, or even military, hindsight.”⁸

ArtII.S2.C1.1.16 Martial Law and Domestic Disorder

President Washington himself took command of state militia called into federal service to quell the Whiskey Rebellion, but there were not too many occasions subsequently in which federal troops or state militia called into federal service were required.¹ Since World War II, however, the President, by virtue of his own powers and the authority vested in him by Congress,² has used federal troops on a number of occasions, five of them involving resistance to desegregation decrees in the South.³ In 1957, Governor Orval Faubus employed the Arkansas National Guard to resist court-ordered desegregation in Little Rock, and President Dwight Eisenhower dispatched federal soldiers and brought the Guard under federal authority.⁴ In 1962, President John Kennedy dispatched federal troops to Oxford, Mississippi, when federal marshals were unable to control rioting that broke out upon the admission of an African American student to the University of Mississippi.⁵ In June and September of 1964, President Lyndon Johnson sent troops into Alabama to enforce court decrees opening schools to Black students.⁶ And, in 1965, the President used federal troops and federalized local Guardsmen to protect participants in a civil rights march. The President justified his action on the ground that there was a substantial likelihood of domestic violence because state authorities were refusing to protect the marchers.⁷

ArtII.S2.C1.1.17 Response to Terrorist Attacks of September 11, 2001

In response to the September 11, 2001, terrorist attacks on New York City’s World Trade Center and the Pentagon in Washington, D.C., Congress passed the “Authorization for Use of Military Force,”¹ which provided that the President may use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks [or] harbored such organizations or persons.” President George W. Bush issued a military authorizing the Department of Defense to detain and prosecute by military commission any non-U.S. citizen the President deemed to be a member of Al Qaeda or otherwise engaged in international terrorism.² The military order also purported to deny individuals subject to it access to U.S. courts or international tribunals.³ Judicial inquiry has mainly involved the President’s authority to detain those deemed “enemy combatants” and to prosecute them for war crimes by military commission.

ArtII.S2.C1.1.18 Detention Authority

During a military action in Afghanistan pursuant to the congressional authorization for the use of force, a United States citizen, Yaser Hamdi, was taken prisoner. The Executive Branch argued that it had plenary authority under Article II to hold such an “enemy combatant” for the duration of hostilities, and to deny him meaningful recourse to the federal courts. In Hamdi v. Rumsfeld, the Court agreed that the President was authorized to detain a United States citizen seized in Afghanistan, although a majority of the Court appeared to reject the notion that such power was inherent in the Presidency, relying instead on statutory grounds.¹ However, the Court did find that the government may not detain the petitioner indefinitely for purposes of interrogation,² and must afford him the opportunity to offer evidence that he is not an enemy combatant.³

In Rasul v. Bush,⁴ the Court rejected an Executive Branch argument that foreign prisoners being held at Guantanamo Bay were outside of federal court jurisdiction. The Court distinguished earlier case law arising during World War II that denied habeas corpus petitions from German citizens who had been captured and tried overseas by United States military tribunals.⁵ In Rasul, the Court noted that the Guantanamo petitioners were not citizens of a country at war with the United States,⁶ had not been afforded any form of tribunal, and were being held in a territory over which the United States exercised exclusive jurisdiction and control.⁷ In addition, the Court found that statutory grounds existed for the extension of habeas corpus to these prisoners.⁸

In response to Rasul, Congress amended the habeas statute to eliminate all federal habeas jurisdiction over detainees, whether its basis was statutory or constitutional.⁹ This amendment was challenged in Boumediene v. Bush,¹⁰ as a violation of the Suspension Clause.¹¹ Although the historical record did not contain significant common-law applications of the writ to foreign nationals who were apprehended and detained overseas, the Court did not find this conclusive in evaluating whether habeas applied in this case.¹² Emphasizing a “functional” approach to the issue,¹³ the Court considered (1) the citizenship and status of the detainee and the adequacy of the process through which the status determination was made; (2) the nature of the sites where apprehension and detention took place; and (3) any practical obstacles inherent in resolving the prisoner’s entitlement to the writ. As in Rasul, the Court distinguished previous case law, noting that the instant detainees disputed their enemy status, that their ability to dispute their status had been limited, that they were held in a location (Guantanamo Bay, Cuba) under the de facto jurisdiction of the United States, and that complying with the demands of habeas petitions would not interfere with the government’s military mission. Thus, the Court concluded that the Suspension Clause was in full effect regarding these detainees.

ArtII.S2.C1.1.19 Military Commissions

In Hamdan v. Rumsfeld,¹ the Supreme Court reviewed the validity of military tribunals established pursuant to President George W. Bush’s military order² to try suspected terrorists for violations of the law of war. The petitioner Hamdan was charged with conspiracy to commit a violation of the law of war. The Supreme Court declined the government’s invitation to invoke the doctrine established in Schlesinger v. Councilman³ to abstain from reviewing the merits of the case until the military commission had issued a verdict.⁴ The Court found the military commissions unlawful, holding that the tribunals as convened did not comply with the Uniform Code of Military Justice (UCMJ)⁵ or the law of war, as incorporated in the UCMJ and embodied in the 1949 Geneva Conventions, which, despite a presidential determination to the contrary,⁶ the Court held applicable to the armed conflict with Al Qaeda. The Court concluded that, at a minimum, Common Article 3 of the Geneva Conventions applies to persons captured in the conflict with Al Qaeda, according to them a minimum baseline of protections, including protection from the “passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”⁷ The Court held that military commissions were not “regularly constituted” because they deviated too far from the rules that apply to courts-martial, without a satisfactory explanation of the need for departing from such rules.⁸ In particular, the Court noted that the commission rules allowing the exclusion of the defendant from attending portions of his trial or hearing some of the evidence against him deviated substantially from court-martial procedures.⁹

A four-Justice plurality of the Court also recognized that for an act to be triable under the common law of war, the precedent for it being treated as an offense must be “plain and unambiguous.”¹⁰ After examining the history of military commission practice in the United States and internationally, the plurality further concluded that conspiracy to violate the law of war was not in itself a crime under the common law of war or the UCMJ.

ArtII.S2.C1.2 Executive Departments

Article II, Section 2, Clause 1 authorizes the President to require the department heads of the Executive Branch to advise the President in writing on matters relating to their duties. The Framers adopted this provision when proposals to establish a Council of State to advise the President failed to win the necessary support at the Constitutional Convention.¹ In the Federalist No. 74, Alexander Hamilton credited Article II, Section 2, Clause 1 with little importance, stating that he considered the provision to be a “mere redundancy” because “the right for which it provides would result of itself from the office.”² Discussing the provision in his Commentaries on the Constitution of the United States, Justice Joseph Story opined that while the President’s right to require such opinion “would result from the very nature of the office,” the provision serves a purpose by “impos[ing] a more strict responsibility, and recognizes a public duty of high importance and value in critical times.”³

President George Washington established the practice of the Executive Branch department heads meeting collectively to advise the President as a Cabinet.⁴ Consequently, Cabinet meetings are not required under the Constitution.⁵

ArtII.S2.C1.3.1 Overview of Pardon Power

The Constitution establishes the President’s authority to grant clemency, encompassing not only pardons of individuals but several other forms of relief from criminal punishment as well.¹ The power, which has historical roots in early English law,² has been recognized by the Supreme Court as quite broad. In the 1886 case Ex parte Garland, the Court referred to the President’s authority to pardon as “unlimited” except in cases of impeachment, extending to “every offence known to the law” and able to be exercised “either before legal proceedings are taken, or during their pendency, or after conviction and judgment.”³ Much later, the Court wrote that the “broad power conferred” in the Constitution gives the President “plenary authority” to “‘forgive’ [a] convicted person in part or entirely, to reduce a penalty in terms of a specified number of years, or to alter it” with certain conditions.⁴

Despite the breadth of the President’s authority under the Pardon Clause, the Constitution’s text provides for at least two limits on the power: first, clemency may only be granted for “Offenses against the United States,”⁵ meaning that state criminal offenses and federal or state civil claims are not covered.⁶ Second, the President’s clemency authority cannot be used “in Cases of impeachment.”⁷

Beyond textual limits, certain external constitutional and legal considerations may act as constraints on the power. For instance, the Court has indicated that the power may be exercised “at any time after [an offense’s] commission,”⁸ reflecting that the President may not preemptively immunize future criminal conduct. In Schick v. Reed, the Court recognized that an exercise of clemency may include “any condition which does not otherwise offend the Constitution,”⁹ suggesting that the President may not make clemency subject to a condition that is prohibited by another constitutional provision.¹⁰ Other apparent limitations include not affecting vested rights of third parties, such as where forfeited property is sold,¹¹ or proceeds “paid into the treasury,” which “can only be secured to the former owner . . . through an act of [C]ongress.”¹² The Court in The Laura also alluded to an exception for “fines . . . imposed by a co-ordinate department of the government for contempt of its authority,”¹³ though a later case recognized that the President may pardon one who is subject to criminal punishment for contempt of court.¹⁴

Assuming the recognized limitations are not transgressed, a full pardon granted by the President and accepted by its subject¹⁵ prevents or removes “any of the penalties and disabilities consequent upon conviction . . . .”¹⁶ In several nineteenth-century cases, the Supreme Court suggested that a pardon broadly obviates all legal guilt of the offender, effectively erasing the crime from existence.¹⁷ Subsequent cases appear to have backed away from this understanding,¹⁸ suggesting instead that, although a full pardon precludes punishment for the offense in question, a prior and pardoned offense may still be considered in subsequent proceedings.¹⁹

Congress generally cannot substantively constrain the President’s pardon authority through legislation, as the Court has held that the “power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.”²⁰ Nevertheless, there is historical precedent for legislation facilitating the exercise of the pardon power through funding of Executive Branch positions to review clemency petitions.²¹ Congress also has other constitutional tools that it may use in relation to the President’s pardon authority, provided the legal conditions associated with those tools are met, such as oversight,²² impeachment,²³ and constitutional amendment.²⁴

ArtII.S2.C1.3.2 Historical Background on Pardon Power

The presidential power to “grant [r]eprieves and [p]ardons” is, at its core, the authority to grant relief from the consequences of a criminal act.¹ The President’s authority under Article II, Section 2 encompasses several distinct forms of relief that may be temporary or permanent, partial or wholesale, and may be granted at any time after alleged commission of a federal crime.²

The broad concept of governmental authority to provide relief from criminal punishment has deep historical roots.³ The power vested in the President by the Constitution traces its origins to authority held by the English Crown,⁴ leading the Supreme Court to look to legal principles underlying the latter in interpreting the scope of the former.⁵ A “prerogative of mercy” held by the King appeared during the reign of King Ine of Wessex (688–725 A.D.)⁶ and by 1535 had been declared by Parliament, during the reign of King Henry VIII (1509–1547 A.D.), as a right exclusive to the Crown.⁷ Though broad in application, the power as it existed through the colonial period did have legal limits, which grew in number in response to perceived abuses of the King’s authority.⁸ For instance, a pardon could not impair certain rights of third parties⁹ and, by act of Parliament in 1701, pardons could not be pleaded to bar impeachment (though a pardon following sentence was still available).¹⁰

Prior to the American Revolution, the King’s pardon authority applied in the American colonies through delegation to colonial authorities.¹¹ The English legal tradition of pardon then directly influenced the framers of the U.S. Constitution following independence.¹² The two major plans offered at the Constitutional Convention—the Virginia and New Jersey Plans—did not address pardons.¹³ In suggested amendments to the Virginia Plan, however, Alexander Hamilton included a pardon power vested in an “Executive authority” that could be exercised over “all offences except Treason,” with a pardon for treason requiring Senate approval.¹⁴ The first report of the Committee of Detail included a proposed provision giving the President power to grant reprieves and pardons, with the only exception being that a pardon would “not be pleadable in bar of an impeachment.”¹⁵

There was little debate at the Constitutional Convention of the pardon power,¹⁶ though several exceptions and limitations were proposed. Edmund Randolph proposed reincorporating an exception for cases of treason, arguing that extending pardon authority to such cases “was too great a trust,” that the President “may himself be guilty,” and that the “Traytors may be his own instruments.”¹⁷ George Mason likewise argued that treason should be excepted for fear that the President could otherwise “frequently pardon crimes which were advised by himself” to “stop inquiry and prevent detection,” eventually “establish[ing] a monarchy, and destroy[ing] the republic.”¹⁸ James Wilson responded to such arguments by pointing out that if the President were himself involved in treasonous conduct, he could be impeached.¹⁹ Randolph’s motion was defeated by an 8-2 vote, with one divided.²⁰ Another proposal would have made reprieves and pardons available only after conviction.²¹ However, when James Wilson pointed out that pre-conviction pardons might be needed to secure accomplice testimony, the motion to add the language was withdrawn.²²

Additional proposals and discussion at the Constitutional Convention centered on what role, if any, the legislature should play in the pardon power’s exercise. For instance, during debate of Edmund Randolph’s proposal to except treason, James Madison expressed a preference for Senate consultation in such cases.²³ Others, however, conveyed unease at the prospect of giving the legislature a role in the pardon process, arguing that a body “governed too much by the passions of the moment” was “utterly unfit for the purpose” and that such a role would be inconsistent with the constitutional separation of powers.²⁴ Separately, Roger Sherman proposed making reprieves applicable only until the ensuing Senate session and requiring Senate consent for all pardons.²⁵ Sherman’s motion was defeated by a vote of 8-1.²⁶

During the same session, the final language of the impeachment exception—“except in cases of impeachment”—was added without noted discussion, supplanting proposed language more closely mirroring the English limitation that a pardon should “not be pleadable in bar.”²⁷ It appears to have been understood that, in its final form, the impeachment exception did not permit pardon following conclusion of impeachment proceedings (as had been the case under English law)—in a pamphlet published during the ratification debates, James Iredell noted that the king “may pardon after conviction, even on an impeachment; which is an authority not given to our President, who in case of impeachments has no power either of pardoning or reprieving.”²⁸

In the Federalist No. 74, Alexander Hamilton maintained that the broad, Executive-held pardon power encompassed in the Constitution was desirable, arguing such a power “should be as little as possible fettered or embarrassed” to ensure “easy access to exceptions in favour of unfortunate guilt.”²⁹ Hamilton also averred that locating the power solely with the President would lead to its most beneficial exercise, as a single person would be “a more eligible dispenser of the mercy of the government than a body of men” who “might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency.”³⁰ With respect to concerns that cases of treason should not be pardonable or should be dependent on legislative assent, Hamilton raised several points in response, including (1) treason might often be connected with sedition involving a broader portion of the community, in which case “the representation of the people [might be] tainted with the same spirit which had given birth to the offence”³¹; (2) during an insurrection or rebellion, a “well-timed” offer of pardon to insurgents might be necessary but could be stymied if it were necessary to convene the legislature and obtain its sanction;³² and (3) the exception for impeachment was sufficient to protect against abuses of the pardon power related to potentially treasonous conduct in which the President himself was implicated, as he “could shelter no offender, in any degree, from the effects of impeachment and conviction.”³³

ArtII.S2.C1.3.3 Pardon Power and Forms of Clemency Generally

Article II, Section 2 of the Constitution gives the President power to “grant Reprieves and Pardons.”¹ Encompassed in this provision is the authority to provide relief from the punishment that would otherwise follow from commission of an “Offence[ ] against the United States,” i.e., a federal crime.² The President’s power in this respect encompasses several related forms of relief, including not only a full, individual pardon and time-limited reprieve but also amnesty for groups of offenders, commutation of a criminal sentence, and remission of fines or penalties.³

ArtII.S2.C1.3.4.1 Pardons Generally

A full or absolute pardon obviates any punishment for the crime at issue and restores the offender’s civil rights, if applicable.¹ In the 1866 case Ex parte Garland, the Supreme Court recognized that a pardon granted before conviction “prevents any of the penalities and disabilities consequent upon conviction from attaching,” and “if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights . . . .”²

A pardon may be made subject to conditions. In Ex parte Wells, the Court directly addressed the question of whether the pardon power included the power to pardon conditionally and concluded, in reliance on English precedent, that it does.³ Yet the scope of the President’s power to grant pardons has limits. With respect to conditions, the Court in the 1974 case Schick v. Reed stated that “considerations of public policy and humanitarian impulses support an interpretation of [the] power so as to permit the attachment of any condition which does not otherwise offend the Constitution,”⁴ though the Court has not addressed the scope of this limitation on conditional pardons in any subsequent case. Regardless, a pardon may only be granted after the commission of the eligible offense,⁵ though the clemency may precede any institution of formal proceedings.⁶ A pardon is also waivable. In United States v. Wilson, the defendant pled guilty to a federal offense and, upon inquiry by the lower court as to the effect of a pardon known to have been granted to him, “waived and declined any advantage or protection which might be supposed to arise from the pardon referred to.”⁷ The Supreme Court gave effect to the defendant’s wish, concluding that because the pardon was not “brought judicially before the court, by plea, motion or otherwise, ought not to be noticed by the judges, or in any manner to affect the judgment of the law.”⁸ As a corollary, a pardon must be accepted to be effective,⁹ though this principle appears to differ as between pardons on the one hand and commutation and remission on the other.¹⁰

ArtII.S2.C1.3.4.2 Amnesties

Amnesty is essentially identical to pardon in ultimate effect, with the principal distinction between the two being that amnesty typically “is extended to whole classes or communities, instead of individuals[.]”¹ As with other forms of clemency, amnesty may be partial or conditional.² Among others, prominent examples of amnesty ocurred during and after the Civil War and the Vietnam War. For instance, Presidents Abraham Lincoln and Andrew Johnson issued a series of proclamations offering and ultimately granting amnesty to those who participated in the Civil War on the side of the Confederacy,³ and the Supreme Court decided several cases addressing the implications of such amnesty for property seized by statute.⁴ Beyond the Civil War, a more recent historical example of amnesty came in the 1970s, when President Jimmy Carter granted amnesty to many who violated the Selective Service Act by evading the draft during the Vietnam War.⁵

ArtII.S2.C1.3.4.3 Commutations, Remissions, and Reprieves

Rather than obviating punishment in its entirety, as pardon and amnesty may do, commutation substitutes the punishment imposed by a federal court for a less severe punishment, such as by reducing a sentence of imprisonment.¹ Similarly, remission operates to reduce or discharge criminal “fines, penalties, and forfeitures of every description arising under the laws of [C]ongress.”² As discussed elsewhere, however, money paid into the treasury or property in which the rights of a third party have vested are beyond the reach of the President’s authority.³

As with other forms of clemency, commutation or remission may be conditional. In Schick v. Reed, the Court addressed a challenge to the validity of a condition attached to a commutation of the petitioner’s death sentence to life imprisonment that prohibited the petitioner from ever being eligible for parole.⁴ The petitioner argued that the condition exceeded the President’s authority because it was not authorized by statute and, had the commutation not been granted, the petitioner’s death sentence would have been set aside by an intervening Supreme Court decision regardless.⁵ The Court rejected these arguments, holding that the conditional commutation “was lawful,” as “the pardoning power was intended to include the power to commute sentences on conditions which do not in themselves offend the Constitution, but which are not specifically provided for by statute.”⁶

Despite the explicit inclusion of reprieve in the constitutional text, Supreme Court discussion of its contours is scant. In Ex parte Wells, the Court described reprieve in dicta as “delay [of] a judicial sentence when the President shall think the merits of the case, or some cause connected with the offender, may require it,” as well as cases of legal necessity (with the two examples given being pregnancy and the onset of “insan[ity]”).⁷ Historical practice has been consistent with the understanding that the President’s power includes authority to temporarily delay execution of a criminal sentence. For example, President Bill Clinton issued reprieves delaying twice the execution date of Juan Raul Garza, who had been convicted of capital homicide offenses, so that the Department of Justice could conduct a study of certain disparities in imposition of the federal death penalty.⁸

ArtII.S2.C1.3.5 Scope of Pardon Power

Regardless of the type of clemency at issue, the President’s power extends only to “offences against the United States,” meaning federal crimes but not state or civil wrongs.¹ One question the Supreme Court has addressed concerns the extent to which the pardon power reaches contempt of another branch’s authority; specifically, contempt of court. In the 1885 case The Laura, the Court recognized that the pardon power includes the power to remit fines, penalties, and forfeitures but noted an exception for “fines . . . imposed by a co-ordinate department of the government for contempt of its authority.”² Forty years later, the Court in Ex parte Grossman held that the President may pardon criminal (but not civil) contempts of a federal court.³ The Court explained that the independence of each branch of the federal government was “qualified” by “co-ordinating checks and balances of the Constitution” and thus did not “constitute a broadly positive injunction or a necessarily controlling rule of construction” on the question of the scope of the President’s pardon authority.⁴

Whether the Court’s ruling in Grossman extends to contempt of Congress is an open question.⁵ Supreme Court Justice Joseph Story, in his famous 1833 treatise Commentaries on the Constitution of the United States, asserted that contempt of Congress is excluded from the scope of the pardon power “by implication,” as presidential authority to pardon congressional contemnors would result in Congress being “wholly dependent upon his good will and pleasure for the exercise of their own powers.”⁶ Nevertheless, in Grossman, the Court suggested that the remedy of impeachment would be sufficient to counter abuse of the pardon power.⁷ It appears that there is at least one historical example of a pardon of contempt of Congress, granted by President Franklin D. Roosevelt, which apparently went unchallenged in court.⁸

The textual exception to the pardon power, “in Cases of Impeachment,” likewise has not been the subject of sustained Supreme Court analysis. Historically, a similar exception under English law prevented a pardon from being pleaded to bar impeachment but still permitted pardon following conviction.⁹ The exception in the U.S. Constitution appears to have been understood to reach more broadly, however, with James Iredell remarking during the ratification debates that such “authority [is] not given to our President.”¹⁰ And in Ex parte Wells, the Supreme Court noted in passing the English provision and referred to the impeachment exception in the Constitution as “an improvement upon the same.”¹¹

ArtII.S2.C1.3.6 Rejection of a Pardon

In the 1833 case United States v. Wilson, Chief Justice John Marshall wrote for the Court that a pardon is a private “act of grace,” a “deed, to the validity of which, delivery is essential, and delivery is not complete, without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him.”¹ Though the Court in Wilson doubted that a “being condemned to death would reject a pardon,” it recognized that a pardon might be rejected regardless of the gravity of the punishment, as, for instance, if the pardon were conditional “the condition may be more objectionable than the punishment inflicted by the judgment.”²

Almost a century later, in Burdick v. United States, the Court confirmed that a pardon may be refused, at least where other constitutional rights are at stake.³ Burdick involved a pardon issued by President Woodrow Wilson to George Burdick, an editor at the New York Tribune, for any federal offenses he “may have committed” in connection with the publication of an article regarding alleged customs fraud, despite the fact that Burdick had not been charged with any crime at the time of the pardon.⁴ The apparent motivation for the pardon was that Burdick had refused to testify before a grand jury investigating the involvement of Treasury Department officials in leaks concerning the wrongdoing, asserting his Fifth Amendment right not to provide testimony that would tend to incriminate him.⁵ Despite President Wilson’s issuance of the pardon, Burdick “refused to accept” it and continued to refuse to answer certain questions put to him before the grand jury.⁶ The Supreme Court in Burdick assumed that the pardon was within the President’s power to issue and concluded that “it was Burdick’s right to refuse it” and stand on his Fifth Amendment objection.⁷

Burdick notwithstanding, if a pardon is accepted, it obviates a Fifth Amendment objection to providing testimony.⁸ Additionally, it appears that the Wilson/Burdick rule does not extend to commutations and remissions. In the later case Biddle v. Perovich, the Court considered a commutation of a death sentence to life imprisonment that the recipient argued was “without his consent and without legal authority.”⁹ The Biddle Court disagreed with this assessment, stating, contrary to the language of Wilson, that a pardon “is not a private act of grace” but is rather a determination of what the public welfare requires.¹⁰ As such, in the Biddle Court’s view, “the public welfare, not [a recipient’s] consent determines what shall be done.”¹¹ On this basis, the Court in Biddle concluded that Burdick should not “be extended to the present case,” indicating that no one doubted “a reduction of the term of an imprisonment or the amount of a fine would limit the sentence effectively on the one side and on the other would leave the reduced term or fine valid and to be enforced” with “the convict’s consent . . . not required.”¹²

ArtII.S2.C1.3.7 Legal Effect of a Pardon

The legal significance of a pardon has been a subject of shifting judicial views over time. In the 1866 case Ex parte Garland, the Court took a broad view of the nature and consquence of a pardon:

A pardon reaches both the punishment prescribed for the offense and the guilt of the

offender; and when the pardon is full, it releases the punishment and blots out of

existence the guilt, so that in the eye of the law the offender is as innocent as if he had

never committed the offence. If granted before conviction, it prevents any of the

penalties and disabilities consequent upon conviction from attaching; if granted after

conviction, it removes the penalties and disabilities, and restores him to all civil rights;

it makes him, as it were, a new man, and gives him a new credit and capacity.¹

Subsequent cases of the era maintained this view that pardon “blots out” both guilt and punishment—for instance, in Carlisle v. United States, the Court wrote that a pardon “not merely releases the offender from the punishment prescribed for the offence, but . . . obliterates in legal contemplation the offence itself.”² As such, the Court in Carlisle determined that a pardon entitled its recipient to obtain the proceeds of property previously abandoned or captured without having to establish loyalty to the Union during the Civil War as would otherwise have been required by statute.³ More broadly, the Court ruled in several cases during this period that pardons entitled their recipients to recover property forfeited or seized on the basis of the underlying offenses, so long as vested third-party rights would not be affected and money had not already been paid into the Treasury (except as authorized by statute).⁴ In Boyd v. United States, the Court addressed one of the “disabilities” referred to in Garland that a pardon removes, recognizing that the ability of a man convicted of larceny to act as a witness in court was restored by President Benjamin Harrison’s pardon.⁵ According to the Court, because the “disability to testify” was “a consequence, according to the principles of the common law, of the judgment of conviction, the pardon obliterated that effect. The competency as a witness of the person so pardoned was therefore completely restored.”⁶

Cases following Garland and Carlisle also began to note limits to the Court’s broad framing of the effect of a pardon, however; in Knote, the Court wrote that although a pardon “blots out the offence” in a legal sense, “it does not make amends for the past. . . . The offence being established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required.”⁷ Later cases underscored the limits of the Court’s previous sweeping language. First, contrary to the suggestion of Garland that a pardon “blots out of existence the guilt” associated with the offense,⁸ the Court in Burdick stated that a pardon “carries an imputation of guilt; acceptance a confession of it.”⁹ Then, in Carlesi v. New York, the Court determined that a pardoned offense could still be considered “as a circumstance of aggravation” under a state habitual-offender law,¹⁰ reflecting that although a pardon may obviate the punishment for a federal crime, it does not erase the facts associated with the crime or preclude all collateral effects arising from those facts.¹¹

ArtII.S2.C1.3.8 Congress’s Role in Pardons

The Supreme Court has recognized that Congress cannot substantively limit the effect of a pardon through legislation. In Ex parte Garland, the Court held that the power of the President to pardon “is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.”¹ In United States v. Klein, the Court voided a law that sought to bar the use of a pardon or amnesty as a substitute for proof of loyalty necessary to recover property abandoned and sold by the government during the Civil War.² The Klein Court held that the provision was an impermissible attempt to change the effect of pardons by requiring courts to “treat them as null and void,” i.e., to “disregard pardons . . . and to deny them their legal effect.”³ Over a century after Klein, in rejecting the proposition that a condition attached to clemency must be authorized by statute, the Court in Schick v. Reed reaffirmed that “the power [of clemency] flows from the Constitution alone, not from any legislative enactments, and . . . it cannot be modified, abridged, or diminished by the Congress.”⁴

Despite the Supreme Court’s rigid view of the limits of legislative authority over pardons, Congress may have a role to play in exercise of the pardon power through other legal and constitutional processes. For instance, there is historical precedent for Congress facilitating exercise of the power by funding positions in the Department of Justice to assist in considering clemency petitions.⁵ The Court in The Laura also upheld a statute vesting in a subordinate officer, the Secretary of the Treasury, the authority to remit fines or penalties provided for in laws related to steam-vessels, with exceptions, rejecting the argument that the law encroached on the President’s power to pardon based on precedent for the practice going back to England.⁶

Beyond legislation, Congress has invoked its Article I authority to conduct oversight as a more indirect constraint on use of the pardon power,⁷ and the Supreme Court has alluded to the possibility of impeachment as a check on misuse of the power.⁸ Congress can also seek to amend the Constitution to clarify or constrain the President’s clemency authority.⁹ These constitutional processes are subject to constraints, which are discussed in more detail in their respective annotations.¹⁰