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President, Prime Minister or Constitutional Monarch?

Published online by Cambridge University Press:  27 February 2017

Eugene V. Rostow
Eugene V. Rostow*
Affiliation:
Yale University, National Defense University
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Extract

In the making and conduct of foreign policy, Congress and the President have been rivalrous partners for 200 years. It is not hyperbole to call the current round of that relationship a crisis—the most serious constitutional crisis since President Franklin D. Roosevelt tried to pack the Supreme Court in 1937. Roosevelt’s court-packing initiative was highly visible and the reaction to it was violent and widespread. It came to an abrupt and dramatic end, some said as the result of divine intervention, when Senator Joseph T. Robinson, the Senate Majority Leader, dropped dead on the floor of the Senate while defending the President’s bill. Everyone knew that Robinson hated the proposal, and was speaking for it only as a matter of political duty. The bill was discreetly buried shortly thereafter, the Court having meanwhile adjusted some of its doctrine to the prevailing winds. One Justice resigned.

Type
Distribution of Constitutional Authority
Information
American Journal of International Law , Volume 83 , Issue 4 , October 1989 , pp. 740 - 749
Copyright
Copyright © American Society of International Law 1989

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References

1 J. Alsop & T. Catledge, The 168 Days (1938); R. Jackson, The Struggle for Judicial Supremacy (1941); J. M. Burns, Roosevelt, The Lion and the Fox (1956).

2 The Works of Alexander Hamilton 432, 437 (H. C. Lodge ed. 1904).

3 Save where justice to the accused in a criminal case requires otherwise. Nixon v. United States, 437 U.S. 683 (1974).

4 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 165–66, 170 (1803).

5 Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting).

6 INS v. Chadha, 462 U.S. 919 (1983).

7 The Federalist No. 47, at 312, 313 (Preface by E. E. Earle, Modern Library ed. 1937).

8 Id., No. 48, at 321.

9 Id.

10 Id. at 321, 323.

11 Id. at 323.

12 Id.

13 Id. at 322.

14 A. Sofaer, 1 War, Foreign Affairs and Constitutional Power: The Origins (1976); and H. Cox, 2 War, Foreign Affairs and Constitutional Power, 1829–1901 (1984).

15 The Legislative-Executive Balance in International Affairs: The Intent of the Framers, Wash. Q., No. 1, 1989, at 99, 104.

16 Id. at 100–03.

17 E. V. Rostow, “Once More unto the Breach”: The War Powers Resolution Revisited, 21 Val. U.L. Rev. 1, 5–18(1986).

18 J. Locke, Two Treatises of Government, bk. II, ch. 14, at 159–66 (P. Laslett rev. ed. 1960); see also The Federalist, supra note 7, No. 41, at 259, 262 (J. Madison).

19 F. M. Kaiser, Congress and National Security Policy 6–7 (Paper prepared for discussion at National Defense University symposium, Dec. 1, 1988).

20 Id. at 7. See also Louis Fisher, Why Congress Passed the War Powers Resolution (Paper presented at the University of Virginia School of Law, Sept. 23, 1988); L. Fisher, Constitutional Conflicts Between Congress and the President (1985); L. Fisher, Constitu Tional Dialogues (1988); E. Keynes, Undeclared War: Twilight Zone of Constitu Tional Power (1982), reviewed by W. Taylor Reveley III, 83 Colum. L. Rev. 2117 (1983).

21 Henkin, Foreign Affairs and the Constitution, 66 Foreign Aff. 284, 292–95, 307 (1987).

22 Id. at 307.

23 E. V. Rostow, The Democratic Character of Judicial Review, 66 Harv. L. Rev. 193 (1952).

24 Myers v. United States, 272 U.S. 52, 276 (1926).

25 United States v. Lovett, 328 U.S. 303 (1946).

26 Henkin, supra note 21, at 296.

27 See text at note 2 supra.

28 17 U.S. (4 Wheat.) 316 (1819).

29 Id. at 421.

30 Pub. L. No. 79-601, ch. 753, 60 Stat. 812 (1946).