Review of "The President Office and Powers by Edward S. Corwin" by C. Emory Glande

Glander, C. Emory

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BOOK REVIEWSTHE PRESIDENT OFFICE AND PowERs-Edward S. Cor-win. Second Editzon (Revised) New York Unz-verswty Press, Washington Square, New York. 1941."The truth is that in the presidential office, as it has been con-stituted since Jackson's time, American democracy has revived theoldest political institution of the race, the elective kingship."This assertion of Hehry Jones Ford in his Rise and Growt] ofAmerican Politics, reminiscent of an earlier assertion of like importmade by Secretary of State Seward, suggests the theme of this newvolume by Edward S. Corwin, McCormick Professor of Jurispru-dence at Princeton UniversityThe work, which is an outgrowth of lectures given by ProfessorCorwin at New York University in 1937 on the Stokes Foundation,is both historical and analytical in nature. The emphasis is uponthe power of the President under the Constitution, and, while the"personal aspects of the Presidency" are not neglected, they areemphasized only when they seem "to have materially affected thedevelopment of the office and its powers." After considering thehistorical conceptions of the office and matters of qualification, elec-tion and tenure, the author paints five portraits of the President.as Admimstrative Chief, as Chief Executive, as Commander-in-Chief, as the Organ of Foreign Relations and, lastly, as PopularLeader and Legislator.The book contains seven chapters, each of which is topicallyarranged and summarized in several succinct paragraphs. A R6sum6follows the last chapter. The work is exceedingly well documentedboth in the text, which comprises 36 pages, and in the notes whichconstitute about 132 pages. It is to be regretted that the notes areconcentrated at the back of the book. This reviewer greatly prefersthat they follow the text, but the extraordinary length of many of thecitations probably renders this impractical.Asserting at the outset the vagueness of the constitutional grantsof power to the President, the author sketches the historical concep-140DOOK REVIE\VStions ot the office. The early state constitutions, in which guber-natorial office was "reduced almost to the dimensions of a symbol"(P. 4), undoubtedly were influential sources of the Framers' con-cepts of executive power, but "by no means the only source, or eventhe chief source" (p. 6). The Framers were familiar with the con-cepts of Locke, MIontesquieu and Blackstone, and what they had inmind was the "balanced constitution" of these writers "which carriedwith it the idea of a divided initiative in the matter of legislation anda broad range of autonomous executive power or 'prerogative'"(p. 15). In terms of actual experience, two conflicting conceptionsemerge (I) that the executive power "ought always to be subor-4iii:tI" to the legislative power, and (2) that it ought to be more orless "autonomous and self-directing" (p. 310). "Taken by andlarge", the author concludes, "the history of the Presidency is ahistory of aggrandizement, but the story is a highly discontinuousone. Only about one in three of the individuals who have filled the,,ffice "has contributed to the development of its powers" (p. 29)Considering presidential tenure, the author avers that "the pre-vailing sentiment of the Convention of 1787 favored the indefinitereligibility of the President, a sentiment which was owing in con-siderable part to the universal expectation that Washington would bethe first person to be chosen President, and that he would live prac-ticallv forever" (p. 35). In fact, the Framers "devised the Elec-toral College with the intention of rendering the President in-definitely re~ligible" (p. 62) In the light of these premises, theban on third terms is developed and appraised, and the conclusion isreached that "it is impossible to adjudicate at all nicely between thecontending arguments" (p. 38). Nevertheless, a prophecy is addedto the effect that "if the anti-third-term taboo is once set aside, itwill take a long time for an anti-fourth-term or anti-fifth-term tabooto develop. In a word, the presidential term will become indefinite"(p. 38) The latter prediction may be questioned. In the review-er's opinion, it will depend in part upon the strategy of the presiden-tial candidate who seeks to challenge the incumbent. He will findit difficult to succeed upon a multiplicity of issues that do not clashor upon some tradition that is not made secure by constitutionalmandate.Speaking of the Electoral College, the author emphasizes theimportance of a continuously dominant party or two fairly equal, al-ternating parties. To avoid the danger of an election being thrownLAW JOURNAL - DECEMBER, 1941into the House of Representatives, he urges serious consideration ofthe proposal advanced -by Senator Norris by which the Electoral Col-lege as such would be abolished (p. 5). Likewise, the danger spotof presidential disability, as in the cases of Garfield and Wilson, isdiscussed and the enactment of some procedure to deal with it isurged (p. 51).The power of the President as "Administrative Chief" is con-sidered in Chapter III. Three aspects are considered (i) the powerto appoint to office (p. 65), (2) supervisory power over subordinates(p. 76), and (3) the removal power (p. 84).With respect to the removal power, the author discusses in de-tail the cases of Myers v. United States, 272 U. S. 52, (p. 84) andHnwphrey v United States, 295 U. S. 6o2, (p. 91) In the former,the Supreme Court upheld the power of the Executive to removefrom office a first-class postmaster notwithstanding an Act of Con-gress requiring such removal to be "with the advice and consent ofthe Senate." In the latter, the Court held that a member of theFederal Trade Commission, appointed by President Hoover by andwith the advice and consent of the Senate, was wrongfully removedby President Roosevelt. In other words, "(i) as to agents of hisown powers, the President's removal power is illimitable; (2) as toagents of Congress' constitutional powers, Congress may confine itto removal for cause" (p. 96). Viewing the problem realistically,Professor Corwin says that "The Myers Case was decided by a for-mer President (Taft) under the influence of Jacksonian concepts."The result "was soon perceived by the Court to clash with the doc-trines which it bad been building up since about 189o with regard to'a fair hearing' in connection especially with rate regulation, and inthe Humphrey Case it beat a precipitate retreat from the ideology ofthe Myers decision" (pp. iO9, IIo).Of added interest in this chapter is the author's discussion ofthe problem of administrative reorganization. Two proposals of thePresident's Committee on Administrative Management for the re-organization of the executive branch of the National Government areconsidered and evaluated, namely, its recommendations with respectto the independent commissions and the Comptroller General (p.96)Treatment of the President as "Chief Executive" will especiallyinterest students of the law. The problem of congressional delega-tion of power is given first attention. Beginning with the maxim142BOOK REVIEWSderived from John Locke's Treatise on Civil Government that "thelegislature may not delegate its power" (p. 115), American practiceis traced from the earliest cases through the New Deal legislation.The maxim, Professor Corwin concludes, "has passed its heyday,along with the laissez-faire conception of the governmental functionof which it is a reflection" (p. 126).Passing from executive practice and constitutional doctrine ofdelegation of powers, the author deals at length with the emergencypowers of the President. From the doctrine of In re Neagle, 135U. S. i, that "there is a peace of the United States" which entitles aUnited States marshal to resist by force an assault on one of itsjudges (p. 127), we are brought to the so-called "StewardshipTheory" of Theodore Roosevelt, set forth in his Autobiography(p. 131) The latter, which regards executive power to be "limitedonly by specific restrictions... in the Constitution or imposed by theCongress" (p. 131), is viewed by the author as "unquestionably dis-ruptive of conventional views" (p. 132).As supplementary to executive powers, the prerogative of par-dons, amnesties and reprieves is considered. "Whereas Blackstonewas thinking of pardon as an instrument only of clemency. ., theFramers regarded it as also an instrument of law enforcement" (p.136). The case of Gerald Chapman, whose Federal sentence wascommuted by President Coolidge in order that he might be turnedover to Connecticut authorities for trial on a murder indictment, iscited in support of this observation (p. 138).To those who are inclined to speculate upon the war power ofthe President, with or without a declaration by Congress, ChaptersV and VI will be of particular interest, even though they do notanswer all current questions.Chapter V views the President as "Commander-in-Chief", pri-marily "as the custodian and wielder within the United States itselfof the physical forces of the National Government" (p. I55) Thefirst phase of the discussion concerns Lincoln's war power. In addi-tion to Lincoln's course of action and reasoning, the author refersto the famous Prize Cases, 2 Bl. 635 (March IO, 1863) in whichthe Supreme Court "endorsed for the time being the idea of presi-dential dictatorship" (p. 158), and also to ex parte Milligan, 4 Wall.2 (p. 162), the majority opinion of which registered reaction "fromthese extremes of doctrine and practice" (p. 198). Nevertheless,"candor compels recognition of the fact that in emergencies the legis-LAW JOURNAL - DECEMBER, 1941lative power has to stomach many a fairt accompli with such cheer-fulness as it can muster" (p. 165)This chapter also includes a discussion of the powers of thePresident in situations of violence less than war (p. 166), his powersin the establishment of martial law (p. 176), and his powers as theresult of Congressional delegation and as illustrated by VWorld War I(p. I89).In Chapter VI we obtain a view of the President as the "Organof Foreign Relations." Here, Professor Corwin's historical-analyti-cal method finds its most effective expression. A sincere effort ismade to separate the powers of the President and Congress in thefield of foreign relations. The import of the entire chapter is clearlyexpressed at the outset where the author says that "the Constitution,considered only for its affirmative grants of powers which are capa-ble of affecting the issue, is an invitation to struggle for the privilegeof directing American foreign policy In such a struggle the Presi-dent has, it is true, certain great advantages, which are pointed out byJay in The Federalist, the unity of the office, its capacity for secrecyand despatch, and its superior sources of information, to whichshould be added the fact that it is always on hand and ready foraction, whereas the houses of Congress are in adjournment much ofthe time. But despite all this, actual practice under the Constitutionhas shown that while the President is usually in a position to pro-pose, the Senate and Congress are often in a position to dispose.The verdict of history, in short, is that the power to determine thesubstantive content of American foreign policy is a divided power,with the lion's share usually falling to the President, though by nomeans always" (pp. 200, 201)Even more emphatic, in this connection, is the author's conclu-sion "No President has a mandate from the Constitution to conductour foreign relations according to his own sweet will. If his power inthat field is indefinite, so is Congress' legislative power, and if heholds the 'sword', so does Congress hold the 'purse-strings.' Forthe rest, the President's diplomatic powers are, and always havebeen, a function of our foreign policy, and if they seem dangerouslygreat today it is partly 'because our position in the world has be-come, for one reason or another, dangerously great" (p. 254)The final portrait of the President-as "Popular Leader andLegislator"-is a vivid, though incomplete, study in the personaltraits and concepts of individual Presidents as well as a study of1-:uu K REVIEWSpresidential leaderslp. Beginning with the "literary sources ofpresidential leadership" (p. 256), the author surveys "the consti-tutional basis and modus operandi of presidential leadership fromRoosevelt I to Roosevelt II" (p. 264) "The present-day role ofthe President as policy determiner in the legislative field is largelythe creation of the two Roosevelts and Woodrow Wilson, each ofwhom came to the Presidency following a notable and successfulexperience as governor of his home state" (p. 267) After analyzingin some detail the technique of these individuals, the author con-cludes that "presidential leadership has usually been a function oftwo highly variable factors, Crisis and Personality" (p. 281).Following a consideration of the veto power as a "positive"weapon of presidential leadership (p. 282) and such "collateral fac-tors" as patronage, filibusters and judicial review (p. 289), Pro-fessor Corwin concludes with the problem of "stabilizing presiden-tial leadership" (p. 297) He alleges that presidential leadership is"discontinuous, not to say spasmodic, that it is too dependent onthe personality of the President rather than on the authority of theoffice, that it is often insufficiently informed, especially as regardsthe all important matter of administrative feasibility, and. finallythat the contact between the President and Congress is most faulty,being, in fact, at the mercy of either's whim" (p. 300). As a rem-edy, he suggests among other things that a reconstruction of theCabinet "is at least a promising expedient, and one to whi(h theConstitution interposes no obstacles" (pp. 304, 307) This solution,he admits, would not eliminate the "alleged undue influence of thePresident on public opinion nowadays. For that, there is under oursystem no remedy except an unshackled public opinion itself Forwhile Democracy implies leadership, it also implies criticism of thatleadership, criticism outspoken and unremitting" (pp. 307, 308)C. EMORY GLANDER,Member of Cohnbus Bar.Executive Secretary,Office of the Governor of Ohio

The President Office and Powers by Edward S. Corwin

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The President Office and Powers by Edward S. Corwin

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