¹ Myers v. United States, 272 U.S. 52 (1926).

² United States v. Brown, 381 U.S. 437 (1965).

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⁵ See generally Report of the Secretary of Defense, Caspar W. Weinberger, to Congress, for Fiscal Year 1985, February 1984.

⁶ See Ravenal, , “Counterforce and Alliance: The Ultimate Connection,” Int'l Security, 6 (1982), 126.Google Scholar

⁷ See, e.g., Hawks, Doves, and Owls, ed. Allison, G., Carnesale, A. and Nye, J. (1985Google Scholar). Bracken, P., The Command and Control of Nuclear Forces (1983).Google Scholar

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¹⁰ Bagehot, W., The English Constitution (1867), p. 61 (pagination from 1963 paperback ed.).Google Scholar

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¹² . Ibid.

¹³ Rehnquist, Compare, “The Notion of a Living Constitution,” Texas Law Review, 54 (1976), 693Google Scholar, with Miller, , “Notes on the Concept of the ‘Living’ Constitution,” George Washington Law Review 31 (1963), 881.Google Scholar

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¹⁶ For example, it has just now been revealed what transpired in the White House during the Cuban Missile Crisis (discussed below). See Trachtenberg, , “Nuclear Weapons in the Cuban Missile Crisis,” International Security, 10 (1985), 137CrossRefGoogle Scholar, contradicting many of the previous accounts of the episode.

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¹⁸ Adams, , The Iron Triangle, p. 17.Google Scholar

¹⁹ Ellul, J., The Political Illusion (1967).Google Scholar

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²¹ See Mintz, M. and Cohen, J., Power, Inc. (1976).Google Scholar

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²³ See United States v. Nixon, 418 U.S. 683 (1974): National Treasury Employees Union v. Nixon, 492 587 (D.C. Cir. 1974).

²⁴ Casper, , “Constitutional Constraints on the Conduct of Foreign and Defense Policy,” University of Chicago Law Review, 43 (1976), 563. 481.CrossRefGoogle Scholar

²⁵ Ibid., p. 485. The quote comes from the War Powers Resolution of 1973, 87 Stat. 555.

²⁶ See Carter, , “The Constitutionality of the War Powers Resolution,” Virginia Law Review, 70 (1984), 101.CrossRefGoogle Scholar

²⁷ 87 Stat. 555, Sec. 2(c).

²⁸ For a history of the use of the prerogative in America, see Miller, , “Reason of State and the Emergent Constitution of Control,” Minnesota Law Review (1980), 585.Google Scholar

²⁹ Machiavelli, N., The Discourses, bk. 1, sec. 9 (first published in 1531).Google Scholar

³⁰ Casper, , “Constitutional Constraints,” p. 485Google Scholar, quoting Morgan, D., Congress and the Constitution (1966), p. 11.Google Scholar

³¹ But of course they were far from the sole concern. For discussion of the period, see Sofaer, A., War, Foreign Affairs and Constitutional Power: The Origins (1976).Google Scholar

³² See the Youngstown decision, note 22 above.

³³ Price, , Unwritten Constitution, p. 125 and passim.Google Scholar

³⁴ The Federalist, No. 47.

³⁵ United States v. Nixon, 418 U.S. 683 (1974) (the case involving the socalled Nixon tapes, secret recordings made by the President in the Oval Office).

³⁶ Immigration & Naturalization Service v. Chadha, 103 Sup. Ct. 2764 (1983), discussed in Fisher, , Constitutional Conflicts, pp. 178–83.Google Scholar

³⁷ United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).

³⁸ Lofgren, , “United States v. Curtiss-Wright Export Corporation: An Historical Reassessment,” Yale Law Journal, 83 (1973), 1, 32CrossRefGoogle Scholar: “the history [of major segments] is ‘shockingly inaccurate,’ If good history is a requisite to good constitutional law, then Curtiss- Wright ought to be relegated to history.”

³⁹ Ibid., pp. 24–25. See Casper, , “Constitutional Constraints,” p. 476.Google Scholar

⁴⁰ McCulloch v. Maryland, 17 U.S. 315 (1819).

⁴¹ Curtiss-Wright, note 37 above.

⁴² But see Miller, & Bowman, , “Presidential Attacks on the Constitutionality of Federal Statutes: A New Separation of Powers Problem,” Ohio State Law Journal, 40 (1979), 51.Google Scholar

⁴³ Youngstown, supra note 22 (concurring opinion).

⁴⁴ The quotation comes from Walton Hamilton, quoted in Eells, R. and Walton, C., Conceptual Foundations of Business (1961), p. 132Google Scholar. Hamilton was describing the business corporation.

⁴⁵ 7 Wallace 506 (1869).

⁴⁶ Van Alstyne, , “The Role of Congress in Determining Incidental Powers of the President and of the Federal Courts: A Comment on the Horizontal Effect of the Sweeping Clause,” Law and Contemporary Problems, 40 (1976), p. 102.CrossRefGoogle Scholar

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⁵⁰ Lowi, T., The End of Liberalism (1969), pp. 297–99.Google Scholar

⁵¹ 2 Black 635 (1863).

⁵² Youngstown, note 22 above.

⁵³ Henkin, L., Foreign Affairs and Constitutional Power: (1972).Google Scholar

⁵⁴ McCulloch v. Maryland, note 40 above.

⁵⁵ Cox, H., War, Foreign Affairs, and Constitutional Power: 1829–1901 (1984), p. 331.Google Scholar

⁵⁶ Levi, , “Some Aspects of Separation of Powers,” Columbia Law Review, (1976), 371, 386.Google Scholar

⁵⁷ Textbook discussions of delegation of powers may be found in Davis, K., Administrative Law Treatise, 2d ed. (1978), chap. 3.Google Scholar

⁵⁸ 42 U.S Code Sec. 2121.

⁵⁹ In his concurring opinion in Youngstown, note 22 above.

⁶⁰ Nor did they think about many, perhaps most, of today's specific public policy problems. They deliberately couched the formal constitution in nebulous language, leaving those words to gather content from experience. Cf. Miller, , “An Inquiry Into the Relevance of the Intentions of the Founding Fathers, With Special Emphasis Upon the Doctrine of Separation of Powers,” Arkansas Law Review, 27(1973), 583.Google Scholar

⁶² That the Supreme Court routinely creates law has, of course, become a truism. For recent discussion, see Forrester, , “Truth in Judging: Supreme Court Opinions as Legislative Drafting,” Vanderbilt Law Review, 30 (1985), 463Google Scholar. See also Miller, , “Social Justice and the Warren Court: A Preliminary Examination,” Pepperdine Law Review, 11 (1984), 473.Google Scholar

⁶³ On nuclear winter, see, for example, Turco, et al. , “Nuclear Winter: Global Consequences of Multiple Nuclear Explosions,” Science, 222 (1983), 1293CrossRefGoogle Scholar; Ehrlich, et al. , “Long-Term Biological Consequences of Nuclear War,”Google Scholaribid.; National Resources Defense Council, Nuclear Winter, Silent Spring (1984).Google Scholar

⁶⁴ Cox, , War, Foreign Affairs, and Constitutional Power, pp. 173, 196, 215.Google Scholar

⁶⁵ The language is that of the Militia Act of 1795, ch. 36, Sec. 2, 1 Stat. 424 (current version is 10 U.S. Code Sec. 331–34).

⁶⁶ Cox, , War, Foreign Affairs, and Constitutional Power, pp. 154–55.Google Scholar

⁶⁷ Ibid., at 226–29.

⁶⁸ Ibid., at 297–99.

⁶⁹ Ibid., at 106–111, 194–95, 196n.

⁷⁰ See Stevenson, W., A Man Called Intrepid (1976).Google Scholar

⁷¹ See Bartlett, B., Cover-up: The Politics of Pearl Harbor, 1941–1946 (1979)Google Scholar; Toland, J., Infamy: Pearl Harbor and Its Aftermath (1982).Google Scholar

⁷² See Miller, , “Reason of State and the Emergent Constitution of Control,” p. 585.Google Scholar

⁷³ Locke, , The Second Treatise of Civil Government, para 160, p. 80, ed. J. Gough (1946)Google Scholar. See Hurtgen, , “The Case for Presidential Prerogative,” University of Toledo Law Review, 7 (1975), 59.Google Scholar

⁷⁴ See Tribe, L., American Constitutional Law (1978), chap. 3.Google Scholar

⁷⁵ Quoted in Spaeth, Book Review, Stanford Law Review, 11 (1948), 178, 179.Google Scholar

⁷⁶ Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); A. L. A. Schechter Poultry Co. v. United States, 295 U.S. 495 (1935).

⁷⁷ National Cable Television Ass'n v. United States, 415 U.S. 336, 352–53 (1974).

⁷⁸ Farrand, M., The Records of the Federal Convention of 1787 (1911), 1:67.Google Scholar

⁷⁹ Wayman v. Southard, 23 U.S. 1, 15–16 (1825).

⁸⁰ 135 U.S. 1 (1890); 158 U.S. 564 (1895); 236 U.S. 459 (1915); 2 Black 635 (1863). It is to be noted that in each of these cases there was no direct confrontation between president and Congress; private parties sought to restrain executive action —quite a different matter.

⁸¹ Youngstown, note 22 above.

⁸² Ford, D., The Button: The Pentagon's Command and Control System—Does It Work? (1985), p. 121 and passim.Google Scholar

⁸³ Ibid., pp. 15–16.

⁸⁴ Ibid. See also Bracken, P., Command and Control of Nuclear ForcesGoogle Scholar; Bracken, , “Accidental Nuclear War” in Hawks, Doves, & Owls, pp. 25–53.Google Scholar

⁸⁵ Ford, , The Button, p. 45.Google Scholar

⁸⁶ See works cited in note 84 above.

⁸⁷ Ford, , The Button, p. 121.Google Scholar

⁸⁸ Johnson v. Weinberger, No. CA 84–2495 (Nov. 19, 1985) (unpublished per curiam opinion): “Johnson has essentially asked for an advisory opinion … Because the district court lacked subject matter jurisdiction …, the judgment dismissing the action is affirmed.”

⁸⁹ For example, a failure of a computer chip costing 46 cents almost caused the launching of nuclear weapons. See Recent False Alerts from the Nation's Missile Attack Warning System, Report of Senators Gary Hart & Barry Goldwater to the Senate Comm. on Armed Services, 96th Cong., 2d Sess. (1980) (Committee print): “There is no guarantee that false alerts will not occur in the future.”

⁹⁰ Bracken, P., Command and Control of Nuclear Forces, p. 222.Google Scholar

⁹¹ Cf. Miller, , “The Constitutional Challenge of Nuclear Weapons: A Note on the Obligation to Ward Off Extinction,” Brooklyn Journal of International Law, 9 (1983), 317Google Scholar, reprinted in Miller, A., Politics, Democracy, and the Supreme Court: Essays on the Frontier of Constitutional Theory (1985), chap. 6.Google Scholar

⁹² Statement of Dr. Clifford Johnson, in first draft of article for San Francisco Barrister club, July 1985, pp. 6–7.

⁹³ See Brief for Appellee in Johnson v. Weinberger, note 88 above.

⁹⁴ Letter from Gary Chapman to Clifford Johnson, dated 11 April 1985, reproduced in appellant's reply brief. The chairman of the Computer Professionals for Social Responsibility, Severo M. Ornstein, is on record as writing: “In all but the simplest computer programs, hidden design flaws can persist, sometimes for years, even though the system seems to work perfectly. Such flaws are revealed only when the system meets a particular set of unforeseen circumstances, at which point the system may suddenly behave erratically. There exist no known methods for eliminating this uncertainty in complex computer systems. To the extent that significant decision making is handled by computers, such design flaws will contribute to inappropriate actions. In particular, a completely automated procedure for deciding to launch missiles that does not allow time for meaningful human deliberation and intervention poses the risk of an accidental launch.” Appendix to appellant's opening brief (ibid.). See Steinbruner, , “Launch Under Attack,” Scientific American, 250 (1984)CrossRefGoogle Scholar: “… the idea of launch under attack is best seen … as a symptom of perilous security conditions that demand more thought than they have yet received” (pp. 37,47).

⁹⁵ Bracken, , Command and Control of Nuclear Forces.Google Scholar

⁹⁶ Ibid., p. 45.

⁹⁷ Ibid.

⁹⁸ 42 U.S. Code 2121 is an apparent unfettered delegation of power. See Ford, , The Button, p. 143.Google Scholar

⁹⁹ Ibid., p. 144.

¹⁰⁰ Discussions of this statute may be found in Davis, , Administrative Law Treatise, chap. 3Google Scholar; Schubert, , “The Presidential Subdelegation Act of 1950,” Journal of Politics, 13 (1951), 647.CrossRefGoogle Scholar

¹⁰¹ Quoted in Ford, , The Button, p. 141.Google Scholar

¹⁰² 3 U.S. Code Annotated 1072–73.

¹⁰³ See note 94.