The Constitution of the United States of America: Analysis and Interpretation Part 93

"This discretion in the executive branch has been upheld and respected by the judiciary. The courts have repeatedly held that they will not and cannot require the executive to produce such papers when in the opinion of the executive their production is contrary to the public interests.

The courts have also held that the question whether the production of the papers would be against the public interest is one for the executive and not for the courts to determine." Mr. Jackson cites Marbury _v._ Madison, 1 Cr. 137, 169 (1803); and more than a dozen other cases, federal and State, most of which involved "privileged communications" in ordinary court proceedings. The doctrine of the equality of the three departments is also invoked by him.--10 Op. Atty. Gen. 45.

[329] _See_ Norman J. Small, Some Presidential Interpretations of the Presidency (Johns Hopkins Press, 1932); Henry C. Black, The Relation of the Executive Power to Legislation (Princeton, 1919); W.E. Binkley, The President and Congress (New York, 1947); Edward S. Corwin, The President, Office and Powers (3d ed., 1948), Chaps. I and VII, _pa.s.sim_.

[330] The first Harrison, Polk, Taylor, and Fillmore all fathered sentiments to this general effect. _See_ Messages and Papers of the President, IV, 1864; V, 2493; VI, 2513-2519, 2561-2562, 2608, 2615.

[331] Note 1, above. [Transcriber's Note: Reference is to Footnote 329, above.]

[332] Charles Warren, Presidential Declarations of Independence, 10 Boston University Law Review, No. 1 (January, 1930); Willoughby, On the Const.i.tution, III, 1488-1492.

[333] 7 Op. Atty. Gen. 186, 209 (1855).

[334] 5 Moore, International Law Digest, 15-19.

[335] 4 Ibid. 473-548; 5 Ibid. 19-32.

[336] Opinion on the Question Whether the Senate Has the Right to Negative the Grade of Persons Appointed by the Executive to Fill Foreign Missions, April 24, 1790; Padover, The Complete Jefferson (New York, 1943), 138.

[337] 4 Moore, International Law Digest, 680-681.

[338] This measure, amended by the act of March 4, 1909 (35 Stat. 1088), is now 18 U.S.C.A. -- 953.

[339] _See_ Memorandum on the History and Scope of the Laws Prohibiting Correspondence with a Foreign Government, S. Doc. 696, 64th Cong., 2d sess., (1917). The author was Mr. Charles Warren, then a.s.sistant Attorney General. Further details concerning the observance of the "Logan" Act are given in Corwin, The President, Office and Powers (3d ed.) 223-224, 469-470. Early in October, 1950 President Harold Sta.s.sen of the University of Pennsylvania announced that he had written Premier Stalin offering to confer with him respecting issues between the two governments.

[340] Benton Abridgment of the Debates of Congress, 466-467.

[341] S. Doc. 56, 54th Cong., 2d sess., (1897).

[342] The Federalist, containing the Letters of Pacificus and Helvidius (New ed., 1852) 444; _see also_ p. 493, n. 1. [Transcriber's Note: Reference is to Footnote 344, below.]

[343] The Federalist No. 69, where he wrote: "The president is also to be authorized to receive amba.s.sadors, and other public ministers. This, though it has been a rich theme of declamation, is more a matter of dignity than of authority. It is a circ.u.mstance which will be without consequence in the administration of the government; and it was far more convenient that it should be arranged in this manner, than that there should be a necessity of convening the legislature, or one of its branches, upon every arrival of a foreign minister; though it were merely to take the place of a departed predecessor." Ibid. 518.

[344] "Letters of Pacificus," 7 Works (Hamilton ed.) 76, 82-83.

[345] Moore, International Law Digest, IV, 680-681.

[346] The Federalist containing the Letters of Pacificus and Helvidius (New ed. 1852) 445-446.

[347] Moore, International Law Digest, I, 243-244. The course of the Monroe Administration in inviting the cooperation of Congress in connection with recognition of the Spanish-American Republics, although it was prompted mainly by the consideration that war with Spain might result, was nonetheless opposed by Secretary of State John Quincy Adams.

"Instead," said he, "of admitting the Senate or House of Representatives to any share in the act of recognition, I would expressly avoid that form of doing it which would require the concurrence of those bodies. It was I had no doubt, by our Const.i.tution an act of the Executive authority. General Was.h.i.+ngton had exercised it in recognizing the French Republic by the reception of Mr. Genet. Mr. Madison had exercised it by declining several years to receive, and by finally receiving, Mr. Onis; and in this instance I thought the Executive ought carefully to preserve entire the authority given him by the Const.i.tution, and not weaken it by setting the precedent of making either House of Congress a party to an act which it was his exclusive right and duty to perform. Mr. Crawford said he did not think there was anything in the objection to sending a minister on the score of national dignity, and that there was a difference between the recognition of a change of government in a nation already acknowledged as sovereign, and the recognition of a new nation itself. He did not, however, deny, but admitted, that the recognition was strictly within the powers of the Executive alone, and I did not press the discussion further.'" Ibid., 244-245; citing Memoirs of John Quincy Adams, IV, 205-206.

[348] S. Doc. 56, 54th Cong., 2d sess., pp. 20-22.

[349] Said Senator Nelson of Minnesota: "The President has asked us to give him the right to make war to expel the Spaniards from Cuba. He has asked us to put that power in his hands; and when we are asked to grant that power--the highest power given under the Const.i.tution--we have the right, the intrinsic right, vested in us by the Const.i.tution, to say how and under what conditions and with what allies that war-making power shall be exercised." 31 Cong. Record, Pt. 4, p. 3984.

[350] _See_ in this connection a long list of resolutions or bills originating in the House of Representatives appertaining to foreign relations. H. Rept. 1569 ("Confidential"), 68th Cong., 2d sess.

(February 24, 1925).

[351] _See_ A Decade of American Foreign Policy, S. Doc. 123, 81st Cong., 1st sess., p. 158.

[352] President Truman's Statement of June 28, 1950, A.P. release: "The Security Council called upon all members of the United Nations to render every a.s.sistance to the United Nations in the execution of this resolution.

"In these circ.u.mstances I have ordered United States air and sea forces to give the Korean Government troops cover and support.

"The attack upon Korea makes it plain beyond all doubt that communism has pa.s.sed beyond the use of subversion to conquer independent nations and will now use armed invasion and war.

"It has defied the orders of the Security Council of the United Nations issued to preserve international peace and security. In these circ.u.mstances the occupation of Formosa by Communist forces would be a direct threat to the security of the Pacific area and to United States forces performing their lawful and necessary functions in that area.

"Accordingly I have ordered the Seventh Fleet to prevent any attack on Formosa. As a corollary of this action I am calling upon the Chinese Government on Formosa to cease all air and sea operations against the mainland. The Seventh Fleet will see that this is done. The determination of the future status of Formosa must await the restoration of security in the Pacific, a peace settlement with j.a.pan, or consideration by the United Nations.

"I have also directed that United States forces in the Philippines be strengthened and that military a.s.sistance to the Philippine Government be accelerated.

"I have similarly directed acceleration in the furnis.h.i.+ng of military a.s.sistance to the forces of France and the a.s.sociated states in Indo-China and the dispatch of a military mission to provide close working relations with those forces."

[353] Messages and Papers of the Presidents, XVII, (1914), 7934.

[354] 55 Stat. 31; 22 U.S.C. (1940), Supp. IV, ---- 411-413.

[355] James F. Green, The President's Control of Foreign Policy, Foreign Policy Reports (April 1, 1939), 17-18; Corwin, The President, Office and Powers (3d ed.), 224-235; 463-465, 473-474.

[356] 2 Pet. 253 (1829).

[357] Ibid. 308.

[358] 13 Pet. 415 (1839).

[359] Ibid. 420.

[360] Foster _v._ Neilson, supra.

[361] Williams _v._ Suffolk Ins. Co., 13 Pet. 415 (1839).

[362] United States _v._ Palmer, 3 Wheat. 610 (1818).

[363] Doe _v._ Braden, 16 How. 636, 657 (1853).

[364] Jones _v._ United States, 137 U.S. 202 (1890); Oetjen _v._ Central Leather Co., 246 U.S. 297 (1918).

[365] In re Baiz, 135 U.S. 403 (1890).

[366] Neely _v._ Henkel, 180 U.S. 109 (1901).

[367] Terlinden _v._ Ames, 184 U.S. 270 (1902); Charlton _v._ Kelly, 229 U.S. 447 (1913).

[368] 333 U.S. 103 (1948).

[369] 49 U.S.C. -- 601.

[370] Ibid. -- 646.