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þ chard Elmore 1980

The emergence of mplementat on as a subject for pol cy analys s co nc des closely w th the d scovery by pol cy
analysts that     *7 . Analys s of pol cy cho ces matters very l ttle f the mechan sm for
mplement ng those cho ces s poorly understood. In answer ng the quest on, >3 &  * 0 $ *
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how alternat ve organ at onal structures w ll behave over . .. t me."6 But the task of pred ct on s vastly compl cated
by the absence of a coherent body of organ at onal theory, mak ng t necessary to pos t several alternat ve models
of organ at on.7
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nvolve measures from send ng troops nto harm's way n ex st ng confl cts to low- ntens ty wars that had the potent al to grow.95 More
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and author ty under the Const tut on as Pres dent and Commander n Ch ef, and under the laws and treat es of the Un ted States, and
pursuant to H.J. þes. 77 (1991), and n accordance w th the r ghts and obl gat ons of the Un ted States under nternat onal law, nclud ng
UN Secur ty Counc l þesolut ons 660, 661, 662, 664, 666, 667, 670, 674, 677, and 678, and cons stent w th the nherent r ght of the
collect ve self-defense aff rmed n Art cle 51 of the Un ted Nat ons Charter, I hereby author e m l tary act ons des gned to br ng about
Iraq's w thdrawal from Kuwa t. These act ons are to be conducted aga nst Iraq and Iraq forces n Kuwa t by U.S. a r, sea and land
convent onal m l tary forces, n coord nat on w th the forces of our coal t on partners, at a date and t me I shall determ ne and
commun cate through the Nat onal Command Author ty channels.99 4 !@   '0  4
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Pres dent Bush reserved the r ght to escalate host l t es and to target Saddam. Husse n d rectly f Iraq should seek to destroy Kuwa t's o l
f elds. In such a case, the NSD announces, " t shall become an expl c t object ve of the Un ted States to replace the current leadersh p of
Iraq. I also want to preserve the opt on of author  ng add t onal pun t ve act ons aga nst Iraq?, mo Iraq d d set the f elds on f re, and the
Un ted States d d not "replace the current leadersh p of Iraq." Bush knew that h s author ty was l m ted both domest cally, n terms of h s
deal ngs w th the Congress, and nternat onally, n terms of hold ng the coal t on together. 4  @  0   *  
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A!(Kenneth, Proff. Of Polt. Sc ence Un v. of W scons n, Pr nceton Un v., ³W th the
Stroke of a Pen: Execut ve Orders and Pres dent al Power´, p. 90,
http://www.quest aschool.com/read/103282967?t tle=W th%20the%20Stroke%20of%20a%20Pe
n%3a%20Execut ve%20Orders%20and%20Pres dent al%20Power) CBC
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although Congress overrode þeagan's veto of sanct on leg slat on the follow ng year. Pres dents have restructured the ntell gence
commun ty through execut ve orders, n part to underm ne congress onal efforts to reorgan e the commun ty v a statute.Y,  
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yesterday as ts bas s for hold ng terror sm suspects at Guantanamo pr son wh le t works to close the fac l ty.
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'       @ and sa d only those who prov ded "substant al" support to Al-Qa' da or
the Tal ban would be cons dered deta nable.
"As we work toward develop ng a new pol cy to govern deta nees, t s essent al that we operate n a manner
that strengthens our nat onal secur ty, s cons stent w th our values, and s governed by law," U.S. Attorney-
General Er c Holder sa d. "The change we've made today meets each of those standards and w ll make our
nat on stronger."
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 +((Joel, Professor at Un vers ty of Connect cut School of Law, Cal forn a Law þev ew,
³The Geopol t cal Const tut on: Execut ve Exped ency and Execut ve Agreements´,
http://www.jstor.org/stable/3481139) CBC
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of nact on and of deference to d ss dent m nor ty nterests supposedly character st c of past eras when
econom c and pol t cal change proceeded at a slower pace and the tw n ocean barr ers gave us an effortless
secur ty s no longer capable, f t ever was, of secur ng the nterests of the Un ted States.
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-     *    !       &$&  operat ons and what
the þeagan Wh te House dubbed "low- ntens ty confl ct,"  &  * 0&    '  
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c  [M chael, JD Georgetown Law, A Necessary þesponse: The Lack of Domest c and Internat onal
Constra nts Upon a U.S. Nuclear þesponse to a Terror st Attack´ Georgetown Journal of Publ c Law and Pol cy 1
Geo. J.L. & Pub. Pol'y 515, Lex s]
Although nternat onal law offers l ttle, f any legal (as opposed to pol t cal), constra nts upon U.S. pol cymakers' dec s ons regard ng the
use of force, domest c law prov des def n t ve l m ts upon such act ons. The U.S. system rel es upon "checks and balances" to ensure that
no branch of government can become overly powerful--a system that s part cularly cr t cal n t mes of war. 4,' 
   *      0*J the nature of warfare requ res qu ck and un form dec s on
n24
mak ng and s far better served by the execut ve than by a large, del berat ve leg slature. However, the Framers bel eved that the
Pres dent should not be g ven unchecked author ty to declare and make war; they feared that absolute power of the execut ve n war
matters m ght lead pres dents to use war on behalf of personal object ves such as revenge, m l tary glory, or personal or part san
n25
aggrand ement. Therefore, the Framers placed two cr t cal war powers n the hands of Congress. Although the Pres dent would have
n26
the power as Commander n Ch ef of the nat on's armed forces to conduct armed host l t es n the manner he deemed appropr ate, the
n27
power to declare war and fund the m l tary was granted to Congress. Add t onally, the power of mpeachment prov ded Congress
n28
w th another potent al [*520] means of l m t ng the Pres dent's control over warfare. Yet, desp te these checks,  
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attack on the Un ted States. Because of the leg t mate poss b l ty that the Un ted States w ll be subject to add t onal terror st attacks,
poss bly more destruct ve than those of September 11, the dangers of unfettered execut ve author ty over nuclear weapons loom
part cularly large.

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 &Ph ll p J. Cooper, By Order of the Pres dent: The Use and Abuse of Pres dent al D rect Act on, 2002
Although attent on has been focused n recent years on such act v t es as peacekeep ng operat ons and what the
þeagan Wh te House dubbed "low- ntens ty confl ct," the specter of nuclear weapons has loomed over the domest c
and nternat onal scene throughout the l fe of the NSC. Certa nly@ ''     * 
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Un on of Concerned Sc ent sts, Toward True Secur ty- Ten Steps the Next Pres dent Should Take to
Transform U.S. Nuclear Weapons Pol cy, February 2008,
http://www.ucsusa.org/nuclear_weapons_and_global_secur ty/nuclear_weapons/pol cy_ ssues/toward-true-
secur ty-ten.html
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surv vable nuclear weapons, and no reason to l nk the s e of U.S. nuclear forces to those of any other
country. The Un ted States would declare all warheads above th s level to be n excess of ts m l tary needs,
move them nto storage, beg n d smantl ng them n a manner transparent to the nternat onal commun ty, and
beg n d spos ng²under nternat onal safeguards²of all pluton um and h ghly enr ched uran um beyond that
requ red to ma nta n these 1,000 warheads. By mak ng the end po nt of th s d smantlement process dependent
on þuss a¶s response, the Un ted States would encourage þuss a to rec procate.Y
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-'       !'      ! *    
'  !& , nclud ng adjustments of rates of pay and allowances for the un formed serv ces83 and amendments to the
Manual for Courts-Mart a1.84 Part cularly dur ng per ods of he ghtened nat onal secur ty act v ty,   !  
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  Many orders have been used to manage publ c lands, but t s often not recogn ed that frequently the lands are parts of
m l tary reservat ons or s tes. In fact '! *    !&    '  *0  
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Notw thstand ng Panama, Grenada, and Iraq, full-scale m l tary attacks are the except on rather than the rule. However, 
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engagement were suff c ently robust to protect Amer can forces or were too loose, perm tt ng pol t cally un ntended clashes, few have
actually seen such orders  )  these    *'  1*   5  
!+(6: The þules of Engagement (þOE) govern ng the defense of the off c al Amer can presence n Lebanon w ll rema n n
effect. Spec f cally, U.S. Naval and tact cal a r power w ll be employed to destroy sources of host le f re d rected at the Amer can
Embassy compound, the Ambassador's res dence and other U.S. personnel or fac l t es n Lebanon. As n prev ous pract ce, f re w ll be
returned at organ at onally assoc ated targets f response to the source of f re s precluded. In v ew of the sudden and prox mate threat to
the Ambassador's res dence wh ch would be posed by a breakthrough at Suk al Gharb, the þOE for support to the LAF at that po nt s
reaff rmed. To perm t effect ve and t mely responses to host le f re n the s tuat ons descr bed above, the Secretary of Defense w ll
ensure that adequate techn cal means are ava lable so as to determ ne the source of host le f re d rected at Amer can personnel n greater
Be rut.102 4  '  *   *'   '&       0 1
  '  !      , as n the Bush adm n strat on's Andean In t at ve n 1989 ntended to help address
threats from the Sender° Lum noso (Sh n ng Path) rebels and to suppress the drug trade.103 4       
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ssues, from m ss on to command and control to preparat on for poss ble host l t es, that have been h gh v s b l ty ssues n the years
s nce the attack on the Mar ne barracks n Lebanon, exacerbated by the debacle n Somal a. In response to the Somal a exper ence, the
Cl nton adm n strat on ssued PDD 25 n May 1994:
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of ntell gence agenc es. 4 0 &   '    '     & 7=  '
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12139, sett ng forth the author ty of a range of off c als to approve fore gn ntell gence electron c surve llance.87
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Stroke of a Pen: Execut ve Orders and Pres dent al Power´, p. 163,
http://www.quest aschool.com/read/103282967?t tle=W th%20the%20Stroke%20of%20a%20Pe
n%3a%20Execut ve%20Orders%20and%20Pres dent al%20Power) CBC
   &  *   & '!'  *       , for two reasons. The f rst was
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ntell gence commun ty should operate nvolved the coord nat on of ntell gence funct ons across departments. As such@ 
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A!(Kenneth, Proff. Of Polt. Sc ence Un v. of W scons n, Pr nceton Un v., ³W th the
Stroke of a Pen: Execut ve Orders and Pres dent al Power´, p. 170,
http://www.quest aschool.com/read/103282967?t tle=W th%20the%20Stroke%20of%20a%20Pe
n%3a%20Execut ve%20Orders%20and%20Pres dent al%20Power) CBC
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þ chard Greener: The Commander-In-Ch ef Test: Fa led?, http://www.huff ngtonpost.com/r chard-greener/the-


commander- n-ch ef-te_b_506120.html, 3-19-2010

The Amer can þevolut on was nsp red and led by c v l ans, not by Generals. Later, our Const tut on was l kew se
conce ved and wr tten by c v l ans. We have no h story of m l tary control over our pol t cal nst tut ons. 4
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emp res and all contemporary Great Powers of the E ghteenth Century. A Pres dent lead ng arm es n the f eld was
never the v s on of the Const tut on.  &  ** '    * !!2 !   
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K  (John, deputy ass stant attorney general n the Off ce of Legal Counsel at the U.S. Department of Just ce,
research fellowsh ps from the Un vers ty of Cal forn a, Berkeley, the Ol n Foundat on and the þockefeller
Foundat on, MEMOþANDUM OPINION FOþ THE DEPUTY COUNSEL TO THE PþESIDENT)
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     * ,  E&      * ' "cloathed 0 
& 0 2  [the]  '&   *   ." The Federal st No. 23, at 122 (Alexander
Ham lton) (Charles þ. Kesler ed., 1999). Foremost among the object ves comm tted to that trust by the
Const tut on s the secur ty of the Nat on. (1) As Ham lton expla ned n argu ng for the Const tut on's
adopt on, because "the c rcumstances wh ch may affect the publ c safety are [not] reduc ble w th n certa n
determ nate l m ts, . . . t must be adm tted, as a necessary consequence that there can be no l m tat on of that
author ty wh ch s to prov de for the defense and protect on of the commun ty n any matter essent al to ts
eff c ency." Id. (2) >
 E    E    '     ' 
 '&      ! * # ." Ha g v. Agee, 453 U.S. 280, 307 (1981) (c tat on om tted).
W th n the l m ts that the Const tut on tself mposes,   &    * & 0  &  
    !'         ' **  *  * #  
    >0   & &   *     ' ." L chter v. Un ted States,
334 U.S. 742, 782 (1948). #      ! &      ! '     !
* >      * ." Appl cat on of Yamash ta, 327 U.S. 1, 12 (1946). The author ty over nat onal
secur ty "carr es w th t the nherent power to guard aga nst the mmed ate renewal of the confl ct." Id.
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when called nto the actual Serv ce of the Un ted States." U.S. Const. art. II, § 2, cl. 1. He s further vested
w th all of "the execut ve Power" and the duty to execute the laws. U.S. Const. art. II, § 1. 4 & 0 
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! . See, e.g., Memorandum for Honorable Charles W. Colson, Spec al Counsel to the Pres dent,
from W ll am H. þehnqu st, Ass stant Attorney General, Off ce of Legal Counsel, þe: The Pres dent and the
War Power: South V etnam and the Cambod an Sanctuar es (May 22, 1970) (the "þehnqu st Memo"). 4
  E  '&       ''7 7 *& 0    
!    In the Pr e Cases, 67 U.S. (2 Black) 635, 670 (1862), for example,   & 
 , whether the Pres dent " n * *       ''  *" had met w th a s tuat on
just fy ng treat ng the southern States as bell gerents and nst tut ng a blockade, 0 2  > 
 ! '>0      2  @ '  > &  & ' 
* c '  0   & 00   ." (5)

  0& 0  #4&&!   &' ' @    


,'    & 
K  (John, deputy ass stant attorney general n the Off ce of Legal Counsel at the U.S. Department of Just ce,
research fellowsh ps from the Un vers ty of Cal forn a, Berkeley, the Ol n Foundat on and the þockefeller
Foundat on, MEMOþANDUM OPINION FOþ THE DEPUTY COUNSEL TO THE PþESIDENT)
 ' ''   have read the const tut onal text d fferently. They       * & 0
0         !  0  '$0 (6) 4  0'  
    '      *  *0 0  
 '   '$ 0 - ndeed, the Const tut onal Convent on spec f cally amended the work ng draft
of the Const tut on that had g ven Congress the power to make war. An earl er draft of the Const tut on had
g ven to Congress the power to "make" war. When t took up th s clause on August 17, 1787, the Convent on
voted to change the clause from "make" to "declare." 2 The þecords of the Federal Convent on of 1787, at
318-19 (Max Farrand ed., rev. ed. 1966) (1911). A supporter of the change argued that t would "leav[e] to
the Execut ve the power to repel sudden attacks." Id. at 318. Further, '  *   
  > > 0@0 '       ,'   '$   
0    '&!> >0. See U.S. Const. art. I, § 10, cl. 3 ("No State shall, w thout
the Consent of Congress . . . engage n War, unless actually nvaded, or n such mm nent Danger as w ll not
adm t of delay."). A State const tut on at the t me of the rat f cat on ncluded prov s ons that proh b ted the
governor from "mak ng" war w thout leg slat ve approval, S.C. Const. art. XXVI (1776), repr nted n 6 The
Federal and State Const tut ons 3247 (Franc s Newton Thorpe ed., 1909). (7) If the Framers had wanted to
requ re congress onal consent before the n t at on of m l tary host l t es, they knew how to wr te such
prov s ons. F nally, ,'  0       *00
  # * '  *       *0"      
      @c      -' 0 '  *     
  0   **    *0. (8) As -H'     dur ng the rat f cat on,
> ' ! ** '    *0  * *   > The Federal st No. 25, at
133 (Alexander Ham lton).
  *            @  *
00  ! ! >&* > *      0-   * !
 * '       & 0 0    * '  *&   *0. See 1
W ll am Blackstone, Commentar es *249-50. G ven th s context,      E & 0 
0         E  & &!     ! 
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K  (John, deputy ass stant attorney general n the Off ce of Legal Counsel at the U.S. Department of Just ce, research fellowsh ps from the
Un vers ty of Cal forn a, Berkeley, the Ol n Foundat on and the þockefeller Foundat on, MEMOþANDUM OPINION FOþ THE DEPUTY
COUNSEL TO THE PþESIDENT)
Const tut onal Structure.    *     * !!  *      
F rst,          * & 0    to ensure a un ty n
purpose and energy n act on. > @  !@ !@ & 0 !   
&    * ' ' ' '    &    *!  '>
The Federal st No. 70, at 392 (-H'  ). 4    *   !     
&  !   '   * * @0@*  &  !@0  ! 
    @  &  !  @'      0  &!  
* &  !  As Ham lton noted, "Energy n the execut ve s a lead ng character n the
def n t on of good government. It s essent al to the protect on of the commun ty aga nst fore gn attacks." Id. at
391. Th s s no less true n war. "*      * ' @    *0' 
&  !'   2   0      *& 0! ." Id. No. 74, at
415 (Alexander Ham lton). (9) Second,   '$    &   * 
   '  !     ** * '  '  '$  In the area of domest c
leg slat on, the Const tut on creates a deta led, f nely wrought procedure n wh ch Congress plays the central
role.
*   affa rs, however,        ' !@  @  7
 &  *  $  ) @      0  0  ** & 0 
7     ''  *@  0     *   070  
2     !*  0 & * &   '$ 0. By establ sh ng th s framework, ,' 
&    &  * 0'$ 0 *' * @& *2 $@' 
  @    &   Thus, the Pres dent may use h s Commander- n-Ch ef and
execut ve powers to use m l tary force to protect the Nat on, subject to congress onal appropr at ons and control
over domest c leg slat on. Th rd,      2    !'     
   *& 0      7   & 0    '  !   7' 
  *  *  - 

@  &     >L M  0 


     * 1    > U.S. Const. art. II, § 1. By contrast, - 
E =  
     ! & 0 >  ." Id. art. I, § 1. Th s d fference n language nd cates that
  E   & 0  '     '  - 
@  (@0    E 
& 0      & 0     '     4  @- 

  & * ! ' & 0     =  , and some have argued that th s
l m ts the "execut ve Power" granted n the Vest ng Clause to the powers on that l st.   & &  * 
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0   *      =  


) @ ,'    '&!& 0     ! > @>
  '  *  & 0     - 
@0 & !   '  
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. So, for example, the K ng's trad t onal power to declare war was
g ven to Congress under Art cle I, wh le  ''7 7 *   !0 & !   
   - 

. Further, ,'   &!& 0 of the K ng, such as treat es and
appo ntments, ass gn ng the Senate a share n them n Art cle II tself. (10) 4 @  '  - 


'$  &   0     & 0 0     -! @
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4        & !'  !*  > >  @0 
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* '   *         *&        Moreover, the ,'     
    *  >4   *0 '&      *  ''   @>
wrote Alexander Ham lton, > & 0 *  '& !   ''   * '  
  &   *   *     !> The Federal st No. 74, at 415 (Alexander
Ham lton). As a result,              &  !   & 0 
  '  !    &  @ =  &      ' '  
  E   ' & 0 .
c  
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4&    $!  *  **  @!   &   &&  
    
K  (John, deputy ass stant attorney general n the Off ce of Legal Counsel at the U.S. Department of Just ce,
research fellowsh ps from the Un vers ty of Cal forn a, Berkeley, the Ol n Foundat on and the þockefeller
Foundat on, MEMOþANDUM OPINION FOþ THE DEPUTY COUNSEL TO THE PþESIDENT)
Fourth@&      * & 0  0  '  !* 0   &  
   *'0 $ **    . From the very beg nn ngs of the þepubl c, 
  *  @ ''7 7 *@  !& 0     
      &!         **    - Secretary of
State 4 ' I**    dur ng the f rst Wash ngton Adm n strat on: >    
   & 0  * '     LM     & 0 
   &  , subm tt ng only spec al art cles of t to a negat ve by the senate." Due to
th s structure, Jefferson cont nued, "     *  0 *      
  J   @ @   *  & ' @&    &    *  
& ! '     &         !." Thomas Jefferson, Op n on on
the Powers of the Senate (1790), repr nted n 5 The Wr t ngs of Thomas Jefferson, at 161 (Paul L. Ford ed.,
1895). In defend ng Pres dent Wash ngton's author ty to ssue the Neutral ty Proclamat on, Alexander
H'  '   '  &   *   E *  **  & 0 . Accord ng to
Ham lton, Art cle II "ought . . . to be cons dered as ntended . . . to spec fy and regulate the pr nc pal art cles
mpl ed n the def n t on of Execut ve Power; leav ng the rest to flow from the general grant of that power."
Alexander Ham lton, Pac f cus No. 1 (1793), repr nted n 15 The Papers of Alexander Ham lton, at 33, 39
(Harold C. Syrett et al. eds., 1969). As future Ch ef Just ce John Marshall famously declared a few years
later, >4       *       @  &   
0 *    4L M& '    0  0 *      
*   . . . ." 10 Annals of Cong. 613-14 (1800). G ven the agreement of Jefferson, Ham lton, and
Marshall, t has not been d ff cult for the execut ve branch cons stently to assert the Pres dent's plenary
author ty n fore gn affa rs ever s nce. In the relat vely few occas ons where t has addressed fore gn
affa rs,  &'   0   E      &  
   *  **  &       !@   &'   
 @>E E   '  > Harlow v. F tgerald, 457 U.S. 800, 812 n.19 (1982). 4
  E   & '!* 0 * '    2 &        @
* '  & *   *   ! - 

  '$      * 


* #   ''  * See N xon v. F tgerald, 457 U.S. 731, 749-50 (1982). Due to
the Pres dent's const tut onally super or pos t on, the  &'      !>  E 
!&  0  *  &  !L M &   &    ! *  E>
Department of the Navy v. Egan, 484 U.S. 518, 529 (1988) (quot ng Ha g v. Agee, 453 U.S. at 293-94). "The
Founders n the r w sdom made [the Pres dent] not only the Commander- n-Ch ef but also the gu d ng organ
n the conduct of our fore gn affa rs," possess ng "vast powers n relat on to the outs de world." Ludecke v.
Watk ns, 335 U.S. 160, 173 (1948). 4 *  **  & 0  "  > !  @
&! & 0 *       * * '   *  *
    7& 00    2   *     *  ."
Un ted States v. Curt ss-Wr ght Export Corp., 299 U.S. 304, 320 (1936). Conduct ng m l tary
host l t es s a central tool for the exerc se of the Pres dent's plenary control over the conduct of fore gn
pol cy. There can be no doubt that the use of force protects the Nat on's secur ty and helps t ach eve ts
fore gn pol cy goals.          & 0   & 
  * '      &      *  **    
   0   &'    '     !@   '&   0
       &    &   >* ' '&   
  ! *   > N xon v. Adm n strator of General Servs., 433 U.S. 425, 443 (1977).
c  
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        *  &  !@   !  &  
   0 '     !
A H 0++ (Terry and W ll am, W ll am Bennett Munro Professor of Pol t cal Sc ence Sen or
Fellow at the Hoover Inst tut on Ph.D., Un vers ty of M nnesota, Sydney Ste n Professor n Amer can Pol t cs
Co-D rector, Program on Pol t cal Inst tut ons Professor, Department of Pol t cal Sc ence and the College, the
pres dent al power of un lateral act on)
  '       & 0  *     *  
&  !4*    * &   &!&     *  **   '
& & 0 @ !  ''  *J & '     & n that realm Congress was
not expected to recede nto the background md was g ven the power to declare war' and to regulate
nternat onal trade. But over the years     *   '$    
&   ' &   *  &  !   ' &  !4  
  * 0& !  @   0  * & @   !@ &@
*   !, and so on, espec ally n an age of nterdependence, complex ty, and nuclear technology. There s
some ev dence that, w th the end of the Cold War and the r s ng mportance of nternat onal trade, wh ch s
more closely connected to const tuency Congress may be enter ng a new era n wh ch t s less w ll ng to
delegate. On the whole, though,     !      *  **  
   '!*      !&  @  (e.g., S lverste n, 1997)
Prec sely for th s reason, &    ! *  &  ! '   
 ' &  !* '       &
*  **  @'  @ !
   ! $  * '  ! *       ! ' & 0  
&  !  '@ and !   &  !  0 0!  ! They have
been espec ally successful at do ng so, as we noted above, dur ng t mes of war and emergency, when the r
un lateral act ons have ranged from m l tary operat ons to the creat on of new agenc es to the mob l at on of
domest c ndustr es to the mpos t on of wage-pr ce controls.
 0   @ 0@C  0
&       *   *   '@0    ' * 
&  & 0  *     3 3

@    0 K 


       0 n Korea and V etnam, a br ef war n the Pers an Gulf, and
a number of confl cts, for example, the nvas ons of Panama and Granada, and the bomb ng of L bya. - *
 0   &    &* '   @0   7 &  
  0& 0 7&!   !  ! @ *    !
     0 (F sher, l997; Cron n and Genovese, 1998).
c  
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3   <.    ' '  *  &      *  
**  -' 

A +
þ. Chuck Mason, Leg slat ve Attorney, June 18, 2009, Status of Forces Agreement (SOFA):What Is It,
and How Has It Been Ut l ed?, http://www.fas.org/sgp/crs/natsec/þL34531.pdf,

The last group of ,- d scussed '     ' w thout a spec f ed
act v ty or exerc se. 4 '       *&&   !.  ' of the agreements
&&! 1& G&  N   !@  &&! 1& G '&  !&  N 
  !.
   ' '   @'  * '     0  '&  *' 
 & *    The act v t es descr bed may be as broad as ³off c al dut es´ or spec f c to a part cular
class of act v t es ( .e., human tar an, exerc ses, and/or tra n ng).

,-.    ' 
A +
þ. Chuck Mason, Leg slat ve Attorney, June 18, 2009, Status of Forces Agreement (SOFA):What Is It,
and How Has It Been Ut l ed?, http://www.fas.org/sgp/crs/natsec/þL34531.pdf,

41n ted tates  & ! mult lateral and b lateral agreements address ng the status of U.S.
armed forces wh le present n a fore gn country. These agreements, commonly referred to as Status of
Forces Agreements (,- ), generally establ sh the *'0 $ 0 1'  !& 
&  *    !@ address ng how the domest c laws of the fore gn jur sd ct on shall be appl ed
toward U.S. personnel wh le n that country.

Formal requ rements concern ng form, content, length, or t tle of a SOFA do not ex st. A SOFA may be
wr tten for a spec f c purpose or act v ty, or t may ant c pate a longer-term relat onsh p and prov de for
max mum flex b l ty and appl cab l ty. It s generally a stand-alone document concluded as an execut ve
agreement. -,-'!  '!&   @ but the most common ssue addressed s wh ch country
may exerc se cr m nal jur sd ct on over U.S. personnel. Other prov s ons that may be found n a SOFA
nclude, but are not l m ted to, the wear ng of un forms, taxes and fees, carry ng of weapons, use of rad o
frequenc es, l censes, and customs regulat ons.

SOFAs are often ncluded, along w th other types of m l tary agreements, as part of a comprehens ve
secur ty arrangement w th a part cular country-,- *        !' J
 @       &    *1& &     !  &&   * 
  !' ,- '! based on author ty found n prev ous treat es and congress onal
act ons oras sole executive agreements.


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    * & !7    
A!(Kenneth, Proff. Of Polt. Sc ence Un v. of W scons n, Pr nceton Un v., ³W th the
Stroke of a Pen: Execut ve Orders and Pres dent al Power´, p. 65,
http://www.quest aschool.com/read/103282967?t tle=W th%20the%20Stroke%20of%20a%20Pe
n%3a%20Execut ve%20Orders%20and%20Pres dent al%20Power) CBC
   &     '  *&     !. 4  '&   ' * ' 
&  E   & 0 @ *  &    0! C   !@
amb gu t es of the
     &        &    *    &  0 
  . #   2   0*  & 0 J       
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 0  &  0 !   !0 &      &   But what we do
know²or should recogn e² s that    &  0  0     *&  & 0
    $  'J ** 0  'J  **   0 !  '.
It makes sense, then, to survey the landscape n more deta l to analye how pres dents have used them.

4&    & 0      !  
A!(Kenneth, Proff. Of Polt. Sc ence Un v. of W scons n, Pr nceton Un v., ³W th the
Stroke of a Pen: Execut ve Orders and Pres dent al Power´, p. 11,
http://www.quest aschool.com/read/103282967?t tle=W th%20the%20Stroke%20of%20a%20Pe
n%3a%20Execut ve%20Orders%20and%20Pres dent al%20Power) CBC
4&    * & !       *        '&' 
&  !þat onal cho ce nst tut onal sm perm ts a framework that more closely tethers pres dent al behav or to statutory and
const tut onal or g ns, at the same t me that t ntroduces a dynam c element nto the evolut on of pres dent al power.
   
*       &    0 '   @  *0  '* ' the pres dent's
un que & 0 4*   *  &      * ' '  * 
   !   ** @ someth ng far more mportant than most stud es of the pres dency have allowed.³ 4 '&* 
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P +[Jul an, professor of h story and publ c affa rs at Pr nceton Un vers ty's Woodrow W lson School
³Commentary: Can Obama and Congress Share Power?´ CNN Onl ne, January 5,
http://www.cnn.com/2009/POLITICS/01/05/el er.power/ ndex.html]

Obama must be held respons ble as well. Wh le pres dents don't l ke to g ve up power, maybe th s pres dent
w ll be d fferent. At a m n mum, '      2     *   !  
  '   0 
      E    77   2   
0 '      *2  ! ' * If the nat on can create a better balance between
the execut ve and leg slat ve branches, the country w ll benef t. The New Deal proved when both branches
work together, the nat on can produce some of ts f nest and most effect ve programs.

1    & &  & 0
Kenneth A!, : [Kenneth Mayer, professor of pol t cal sc ence at the Un vers ty of W scons n, ³W th the
Stroke of a Pen.´ 2001, pg. 56. ]

Much of the t me, !   * &  .   & 0!     * 0
   &   0  & 0 0 !&    &  '    *
 '&   *&   &  *&  & 0@  &'   *
&   author ty have often been shaped by case-by-case jud c al rev ew, and because pres dents 
     ! (often through execut ve ordersQ;    &  &  
&           !  '       Each t me a pres dent
rel es on execut ve prerogat ve to take some type of act on, t makes t eas er for a future pres dent to take the
same (or s m lar) act on. ³The boundar es between the three branches of government are«strongly affected
of custom or acqu escence. 3     &    
2  @ &    '!*  '  *   
c  
   
   

# * "   0  34


  & 0 $! *   0   
 !5 *  (þobert and Tom, adjunct professor of h story and pol t cal Sc ence at
Norw ch Un vers ty and ass stant professor of pol t cal sc ence, Un vers ty of Southern
M ss ss pp , Amer can D plomacy, ³Nat onal Secur ty Pol cy and the Strong Execut ve: The
French and Amer can Pres dents and the War on Terror´,
http://www.unc.edu/depts/d plomat/arch ves_roll/2003_04-
06/lansfordpauly_exec/lansfordpauly_exec.html) CBC
In add t on to the expl c t const tut onal and legal foundat ons of pres dent al secur ty powers, a var ety of
factors, nclud ng trad t on, necess ty and nterpretat ons of the Supreme Court have expanded the boundar es
of execut ve author ty. The trad t onal freedom g ven to U.S. pres dents to use m l tary force w thout a
congress onal declarat on of war has come to be seen as a man festat on of execut ve pr v lege.14
Furthermore,-' *  &  !      * G    !N0   
  &    G N  **     !&  !.15 4   !    
&  *  '  0  7 !&  * & 0 For nstance, the
Supreme Court dec s on Un ted States v. Curt ss-Wr ght Corporat on (1936) gave execut ve agreements the
we ght of law (and thereby bypassed the senator al approval requ red of treat es), wh le Goldwater v. Carter
(1979) conf rmed the ab l ty of the pres dent to w thdraw from nternat onal treat es w thout congress onal
consent.16 T   *      *& 0  & &    * 1
'  !     .  !0  * '    *0
 &*!      *    .17 *  *  
0   ! 1*  &  !, espec ally dur ng the Cold War era.   &  
0 1    &    ' @0  3 H    ! 
&  & ! * *      ! & !  && @  0 
  & '&' *     !&  !0  ! '     ( c  
  *     &    $ 1     & '@ &  ! 
&  *  * '  *0 was seen as problemat c n terms of the spec f c
dent f cat on of the foe and the ab l ty of the Bush adm n strat on to expand combat operat ons beyond
Afghan stan to countr es such as Iraq.
c  
   
   

   # * "#  


     &      !  ! 
  
 & (Ph ll p, Prof of Publ c Adm n strat on @ Portland State, By Order of the Pres dent: The Use and Abuse
of Execut ve D rect Act on)
4  2    &      n the face of str kes * &    
& &  as well as out of concern for the mpact of the work stoppages themselves. A!&  '& !
      &     '     $     '
 **  H s dec s on to make the f rst act on of h s pres dency (even before leav ng Cap tol H ll after naugurat on) the s gn ng of an
execut ve order on eth cs, 44 h s order call ng for the el m nat on of one hundred thousand publ c serv ce pos t ons,45 and h s order
mandat ng el m nat on of one-half of all execut ve branch nternal regulat ons46 are class c examples of the tact c. 4   *
    *  0  *   '  @ 0    = 
  c   3 H 0   0 0 * $ * 0 0 0
& '!*  '    the order call ng for el m nat on of half the government's nternal regulat ons. Of
course, what the pres dent d d not say was that he was not tak ng act on to reduce the number of execut ve orders that mposed
s gn f cant burdens on the ab l ty of execut ve branch agenc es to carry out the r dut es. Not only d d Cl nton reta n the orders mposed
by h s predecessors, but he even added to the requ rements agenc es had to meet, forc ng, among other th ngs, more of the mounta ns of
paper that the Wh te House lawn ceremony decr ed. Pay ng Debts, þeward ng Supporters, Answer ng Cr t cs, and Send ng S gnals
* &       0 '!&& &    event for reasons other
than those announced when the order s ssued.     **   * &! &  
 @'    *   !@ &      @   &    ²
real or symbol c.    ! !'  0 *  &&   * '$    '  *
&  ! &   0  4! !& !* 0 !*     * '
  and frequently create nteragency or adv sory comm ttees for consultat on,   !!2 ' ! 
    &   They also commonly conta n clauses serv ng not ce that the order establ shes no legally cogn able
r ghts that would just fy jud c al rev ew.

   & 


A!(Kenneth, Proff. Of Polt. Sc ence Un v. of W scons n, Pr nceton Un v., ³W th the
Stroke of a Pen: Execut ve Orders and Pres dent al Power´, p. 10,
http://www.quest aschool.com/read/103282967?t tle=W th%20the%20Stroke%20of%20a%20Pe
n%3a%20Execut ve%20Orders%20and%20Pres dent al%20Power) CBC
 &  &&  '&   *   @ &       &   
    '. 4 &   & !0  the subf eld of& !   @0  
 '  ! & '  '&   &  E   & $     
 '@    *&  & 0@  $!  &    . W th few except ons, 45
ex st ng research on execut ve orders e ther has been descr pt ve or has addressed the consequences of part cularly mportant orders. 46
47
S m larly@ &  '     G  !      & '  .´
More to the po nt, '  *        '  '    *  *   @
 0  '  *  !*  '     $ . 4   G '   
 &&    NJ6(G  ' ! 0   * 'C &  !    NJ6+
G! '  '& !  * &  !    .´ 50 Mark Peterson argues that   
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 & (Ph ll p, Prof of Publ c Adm n strat on @ Portland State, By Order of the Pres dent: The Use and Abuse
of Execut ve D rect Act on)
    *    !2 $@   @ ! !' ' 
* '    *  &  !     Though t s certa nly true that execut ve orders are employed for symbol c
purposes, enough has been sa d by now to demonstrate that ! also *   &  !'$   ! 
 *  '&       $!   under the author ty of the orders.
Unfortunately, as s true of leg slat on, t s not always poss ble to know from the t tle of orders wh ch are s gn f cant and wh ch are not,
part cularly s nce &  0  *      *     0! 
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'! * ' *   &  '!'& !     ' ' '7
  '   &   4!'!        somet mes equally t me-consum ng
'   &   @&  !  '$ &   2 ! -'   
  -  84    &  2 '   &&!  &  , t s tempt ng for
execut ve branch agenc es to seek ass stance from the Wh te House to enact by execut ve order that wh ch m ght be d ff cult for the
agency tself to move through the process. A  @   & * ' !E & &    
  !'  **   * &             
  &  E      ' !  C    0 There s noth ng new
about the pract ce of generat ng execut ve orders outs de the Wh te House. Pres dent Kennedy's execut ve order on that process
spec f cally prov des for orders generated elsewhere.


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A!(Kenneth, Proff. Of Polt. Sc ence Un v. of W scons n, Pr nceton Un v., ³W th the
Stroke of a Pen: Execut ve Orders and Pres dent al Power´, p. 4-5,
http://www.quest aschool.com/read/103282967?t tle=W th%20the%20Stroke%20of%20a%20Pe
n%3a%20Execut ve%20Orders%20and%20Pres dent al%20Power) CBC
3 $ * '  &   *  ''  *@&    
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    *'$ &  !    0!  '&'     !. Yale Law School professor
7
E. Donald Ell ot has argued that many of the thousands of    G& !R'$0. !  @N and
Lou s F sher f nds that desp te *       '  !    *   
  @G   E 0'$      @&  @ and n many cases d sturb ng.´
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A!(Kenneth, Proff. Of Polt. Sc ence Un v. of W scons n, Pr nceton Un v., ³W th the
Stroke of a Pen: Execut ve Orders and Pres dent al Power´, p. 26,
http://www.quest aschool.com/read/103282967?t tle=W th%20the%20Stroke%20of%20a%20Pe
n%3a%20Execut ve%20Orders%20and%20Pres dent al%20Power) CBC
4  &             !  *  @   & 
     0 &    Whether pres dents have effect ve plenary execut ve author ty
or not (an open quest on;@        ! $ * ' **   !  
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A!(Kenneth, Proff. Of Polt. Sc ence Un v. of W scons n, Pr nceton Un v., ³W th the
Stroke of a Pen: Execut ve Orders and Pres dent al Power´, p. 26,
http://www.quest aschool.com/read/103282967?t tle=W th%20the%20Stroke%20of%20a%20Pe
n%3a%20Execut ve%20Orders%20and%20Pres dent al%20Power) CBC
S m larly, C   !       ' 0 *        '  @
*     $! . Moreover@*  C    @* '  ' 
*  &  . The pres dent's ab l ty to w n by default s, l ke h s res dual author ty, re nforced by jud c al doctr nes that make
t more d ff cult to challenge pres dent al act on. The so-called @  rule determ nes how judges referee pres dent al-leg slat ve
d sputes over statutory nterpretat on, and the rule prov des clear advantages to the pres dent. In @  
  
@ 467 U.S. 837 (1984), the Supreme Court ruled that an agency nterpretat on of a statute s ³controll ng unless Congress
has spoken to the µprec se quest on at ssue.¶´ 119  &  @    @   & 
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A!(Kenneth, Proff. Of Polt. Sc ence Un v. of W scons n, Pr nceton Un v., ³W th the
Stroke of a Pen: Execut ve Orders and Pres dent al Power´, p. 24,
http://www.quest aschool.com/read/103282967?t tle=W th%20the%20Stroke%20of%20a%20Pe
n%3a%20Execut ve%20Orders%20and%20Pres dent al%20Power) CBC
Moreover, **   $&  & 0         *  had 
  &   **  * '   !& 0          ' . I treat th s problem
n more deta l n chapter two, but two '&     & '    * 3    
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2 '   H  7)!''   ,  - -  
  
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!&  *  & &      *  &  .´ - ' 
!'    +// 0      '  0! 0 &   
'!  ' & 0  S nce 1917, when Congress passed the Trad ng w th the Enemy Act (TWEA), the pres dent has
had the legal author ty to regulate aspects of fore gn trade n emergency or wart me c rcumstances.  ! @&  
       '7&  *   !      ' 
' J  &!&   &  E &    !!'  *!  0 @* 
'&@  &  E    !    '     0:0    March
+ ). Between 1933 and 1968,      * @&      *
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 : examples ncluded FDþ's proclamat ons clos ng the nat on's banks and proh b t ng the removal of gold from the country,
FDþ's execut ve orders free ng the assets of enemy nat onals, Johnson's execut ve order restr ct ng cap tal transfers abroad, and a N xon
execut ve order cont nu ng certa n export restr ct ons.


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A!(Kenneth, Proff. Of Polt. Sc ence Un v. of W scons n, Pr nceton Un v., ³W th the
Stroke of a Pen: Execut ve Orders and Pres dent al Power´, p. 121,
http://www.quest aschool.com/read/103282967?t tle=W th%20the%20Stroke%20of%20a%20Pe
n%3a%20Execut ve%20Orders%20and%20Pres dent al%20Power) CBC
In 1954 þ chard Neustadt descr bed the expans on of central clearance th s way: ³, '     !!  0@ central
clearance has pers sted, ts h story marked by a long ser es of µacc dental,¶ unforeseen accret ons. Noth ng once absorbed has been
wholly d splaced; each new element somehow encompasses the old « overall, here s a record of great growth, successful adaptat on²
th s under s x success ve Pres dents, through every var at on n nat onal and governmental c rcumstance s nce Hard ng's term of off ce.´
57
The pres dent al budget and growth of BoB power llustrates the pattern: soc etal and pol t cal pressures serve as the mpetus for a new
government capab l ty;    &   '&   2   *   J &  
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A!(Kenneth, Proff. Of Polt. Sc ence Un v. of W scons n, Pr nceton Un v., ³W th the
Stroke of a Pen: Execut ve Orders and Pres dent al Power´, p. 56,
http://www.quest aschool.com/read/103282967?t tle=W th%20the%20Stroke%20of%20a%20Pe
n%3a%20Execut ve%20Orders%20and%20Pres dent al%20Power) CBC
4   &    * & !   &  &  
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const tut onal power rely on h stor cal ev dence of how nd v dual pres dents v ewed that power and how they put t nto pract ce.

4  0   $. 
A!(Kenneth, Proff. Of Polt. Sc ence Un v. of W scons n, Pr nceton Un v., ³W th the
Stroke of a Pen: Execut ve Orders and Pres dent al Power´, p. 11,
http://www.quest aschool.com/read/103282967?t tle=W th%20the%20Stroke%20of%20a%20Pe
n%3a%20Execut ve%20Orders%20and%20Pres dent al%20Power) CBC
In mak ng th s argument about the mportance of execut ve power,
     G &  ! 'N&  
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  , or m red n an unpopular war w ll f nd l ttle solace n the powers spec f ed or mpl ed n Art cle II of the Const tut on.
Nevertheless, '   '  &     & !  $  *      
0@    ' *      &  ! '      *&  
*    &  E &         Some of th s author ty, part cularly n regulatory affa rs,
has been delegated to the pres dent by Congress, 53 but pres dents have also s mply assumed many pol cy-mak ng powers, espec ally n
nat onal secur ty and fore gn pol cy matters. 54 -       &   $&    
    (w th $  the most notable case), &  '   *
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  [Patr c a, Professor of Law @ Notre Dame, ³Execut ve Power n Youngstown¶s Shadows´ Const tut onal
Commentary, , 19 Const. Commentary 87, Spr ng, Lex s]
Second,   E*         *   E const tut onal & 0   
   !  whether some forms of const tut onally based    have the same legal force
as a federal statute. þeturn ng to Dames & Moore, *      u    E    !
   *  &&    '&      !    **   
2   * 0    ! h s    ! & the appl cat on of the *  
that had prov ded the bas s for Dames & Moore's or g nal cause of act on aga nst the Iran an enterpr ses. 291
S m lar quest ons ar se w th respect to the d splacement of state law by operat on of sole execut ve
agreements. 4   —   0   '  > &'50 *
5@> 292 0   & suggest ng that they are 293 and the we ght of recent
commentary   that ! .

77   $! &  & 0


  [Patr c a, Professor of Law @ Notre Dame, ³Execut ve Power n Youngstown¶s Shadows´ Const tut onal
Commentary, , 19 Const. Commentary 87, Spr ng, Lex s]
To see the problems n g v ng d spos t ve we ght to nferences from congress onal act on (or nact on), we need only exam ne the
s m lar t es between courts' approach to execut ve power quest ons and courts' approach to federal-state preempt on quest ons. If a state
law confl cts w th a spec f c federal enactment, n287 or f Congress d splaces the state law by occupy ng the f eld, n288 a court cannot
g ve the state law effect. S m larly, f execut ve act on confl cts w th a spec f c congress onal pol cy (reflected n a statute or, as
Youngstown suggests, leg slat ve h story), or f Congress passes related measures not author  ng the pres dent al conduct, courts cannot
g ve the execut ve act on effect. n289 When Congress s s lent, however, the state law w ll stand; when Congress s s lent, the execut ve
act on w ll stand. Th s analys s makes much sense w th respect to state governments w th reserved powers, but t makes l ttle sense w th
respect to an Execut ve Branch lack ng such powers. 4 '   *   C     
  & **  * & 0. Courts' reluctance to face quest ons about the scope of the
Pres dent's const tut onal powers - express and mpl ed - creates three other problems. F rst,  '& 
&  & 0 ** !   *   C        *!  
  '3    >   >or "concurrent" & 0@ 0    
& 0   &     '      *     E   
& '         @  '!  '
& 0  !    &    !  * *   @   
   &    !  * *   && . In other words, a power that the Execut ve
Branch cla ms s " mpl ed" n the Const tut on may soon become an " mpl ed" and "plenary" one. Quest ons about pres dent al power to
term nate treat es prov de a [*151] ready example. The Execut ve's cla m that the Pres dent has the power to term nate a treaty - the
power n controversy n Goldwater v. Carter, where Congress was s lent - now takes a stronger form: that congress onal efforts to curb
the power are themselves unconst tut onal. n290
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 !pg..77]

 &  the && *! C   ! to the pres dent's orders,  &  & !
'    any number of    0  3 H         @
both legal and llegal, &  **       y. It s an old argument, developed long before the battle over the so-
called Nuremberg defense,          &   **  * '   ! for h s or her act ons.
The class c example harks back to L ttle v. Barreme 13 1 dur ng the Wash ngton adm n strat on. Even legal orders can expose the
government to l ab l ty. Though the *  have often upheld dramat c act ons taken by the pres dent dur ng d ff cult
per ods, they      &&   '     ' later. The many cases that were
brought nvolv ng the U.S. Sh pp ng Board Emergency Fleet Corporat on after World War I prov de examples of just how long such
postorder legal cleanup can take and how much t can Cost. 112 Later, n a 1951 case, the Supreme Court subjected government to
cla ms by bus ness for the damages done to the r nterests dur ng the government's operat on of the coal m nes dur ng World War II after
FDþ se ed the m nes n 1943.133 4 @     '!  0     ! *
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 &+/ [Ph ll p, Professor of Pol Sc @ Un vers ty of Vermont, Adm n strat on and Soc ety, Lex s]

Even f they serve temporary goals,    &    *  '   * complex ty and
 *   !  7 '*    &  '! &  *&  .
  0 '
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agenc es to use the r rule-mak ng processes to accompl sh pol cy ends,     '!  ' !' 
0$*   0   &  ! than the alternat ves.
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$@ (Obama Mak ng Plans to Use Execut ve Power By PETEþ BAKEþ Publ shed: February 12, 2010, http:/
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A' !    &    ''    0   !* 
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* '  *   &!!'       '  !@      
&  0 And the Env ronmental Protect on Agency s mov ng forward w th poss ble regulat ons on heat-trapp ng gases blamed
for cl mate change, wh le a b ll to cap such em ss ons langu shes n the Senate.

á

 

 
$  '1ü 2ü  + *   %  +   0 ) ) !   "*
+ )* $  - '3ü (1'1 4 $52 ü http://www.foxnews.com/pol t cs/2010/02/13/obama-po sed-use-
execut ve-power-muscle-domest c-agenda/) WDK

Faced w th a resurgent GOP and a largely stalled leg slat ve agenda,   ' & 
   & 0 
* 0   '     @    !@   '    '!, The New
York T mes reported. "We are rev ew ng a l st of pres dent al execut ve orders and d rect ves to get the job done across a front of ssues," Wh te
House Ch ef of Staff þahm Emanuel told the newspaper. But a des told the newspaper that Obama s st ll hopeful that progress can be made on
Cap tol H ll, c t ng the b part san summ t on health care scheduled later th s month. Yet the GOP's stunn ng capture last month of the Senate seat
prev ously held by Ted Kennedy has prompted the Wh te House to prepare to go solo to break any part san gr dlock head ng nto the m dterm
elect ons. 4&    *& 0 77* '    !    77   E 
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 '(Tara, Ed tor n Ch ef Texas þev ew of Law and Pol t cs, Texas þev ew of Law and
Pol t cs, ³Pres dent or K ng? The Use and Abuse of Execut ve Orders n Modern-Day Amer ca´,
http://he nonl ne.org/HOL/Page?men_tab=srchresults&handle=he n.journals/jleg28& d=8&s e=
2&collect on=journals&terms= ncreased&termtype=phrase&set_as_cursor=#7) CBC
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&&   þestorat on of our system of separat on of powers w ll requ re that the publ c be educated on
what does²and does not²const tute a const tut onal use of execut ve orders and other pres dent al
d rect ves.

     !

) +F
Mart n )  - Professor of Law and Publ c Pol cy at Northwestern Un vers ty School of Law, 19+F: [Mart n
þed sh, publ shed 1995, Oxford Un vers ty Press, ³The Const tut on as Pol t cal Structure.´ pg. 111.
http://books.google.com/books? d=cb_Bl pþCVQC&pr ntsec=frontcover&source=gbs_navl nks_s ]

4'   *  & '0  '  $   &  *& 0     ! '& !
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*         It m ght be argued that the dangers of tyranny thought to be prevented by the use of
separat on of powers are at best speculat ve. After all, no one can pred ct w th certa nty that, but for the formal separat on of branch
power, the nat on would be l kely to s nk nto a state of tyranny. It s, then, conce vable that all of the Framers¶ efforts to separate and
check powers have been wasted. But    $      *!* ' *& &! &  "0
    @ *    *&  @ '0*0    The dec s on regard ng
whether to employ a part cular prophylact c dev ce, then, must come down to a compar son of the costs ncurred as a result of the
dev ce¶s use w th an est mate of both the l kel hood and sever ty of the feared harm. -   '   ! 
  &  *& 0  '&       '  *    '   @
0          '  &!    * &  *
& 0 4 '     !   &    ' More mportantly, n cr t qu ng
the fa lure of the federal government to act, one must do so beh nd a þawls an ³ve l of gnorance´: Assum ng that abol t on of separat on
of powers would result n an ncrease n governmental act on, we cannot know whether those act ons w ll be ones w th wh ch we agree.
Moreover, the fac l tat on of governmental programs could just as eas ly lead to a w thdrawal of ex st ng governmental programs that we
deem to be w se and just. For example, but for separat on of powers, elect on of þonald þegan could have eas ly led to the abol t on of
soc al welfare programs that had been nst tuted n prev ous Democrat c adm n strat ons.     0   
&  *& 0 *        '&    '      *   
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'   * &  *& 0 & ! 0       
Whether the costs that we actually do ncur are just f ed by the system¶s benef ts requ res us to exam ne the l kel hood and sever ty of
harm that could result f separat on of powers were removed. AS prev ously noted@ ''  2    $   *
!   *& 0 * &  *& 0 0  -* @  $   ! ' *
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*0   $   * & 
*& 0 *  @0 ! $ ' -'  ! '      
   ! *&    '       0 
    *&  & 0          ! The w despread v olat on of nd v dual r ghts
that took place when Pres dent L ncoln assumed an nord nate level of power, for example are well document. Arguably as egreg ous were the
threats to bas c freedoms that arose dur ng the N xon adm n strat on, when the power of the execut ve branch reached what are w dely deemed to have been
ntolerable levels. Though n ne ther nstance d d the execut ve¶s usurpat ons of power ult mately degenerate nto complete and rrevers ble tyranny, the
reason for that may well have been the res l ence of our pol t cal trad t ons, among the most mportant of wh ch s separat on of powers tself. In any event,
t would be pol t cal folly to be overly smug about the secur ty of e ther representat ve government or nd v dual l berty. Although t would be all but
mposs ble to create an emp r cal proof to demonstrate that our const tut onal trad t on of separat on of powers has been an essent al catalyst n the
avo dance of tyranny, common sense should tell us that the s multaneous d v s on of power and the creat on of nter-branch check ng play mportant roles
toward that end. To underscore the po nt, one need only a l m ted mod f cat on of the actual scenar o surround ng the recent Gulf War. In actual ty, the war
was an extremely popular endeavor, thought by many to be a pol t cally and morally just f ed exerc se. But mag ne a s tuat on n wh ch a pres dent,
concerned about h s fa lure to resolve s gn f cant soc al and econom c problems at home, has callously dec ded to engage the nat on n war, s mply to defer
publ c attent on from h s domest c fa lures. To be sure, the pres dent was presumably elected by a major ty of the electorate, and may have to stand for
reelect on n the future. However, at th s part cular po nt n t me, but for the system establ shed by separat on of powers, h s author ty as commander n ch ef
to engage the nat on n war would be effect vely d ctator al. Because the Const tut on reserves to the arguably even more representat ve and accountable
Congress the author ty to declare war, the Const tut on has attempted to prevent such m suse of power by the execut ve. It rema ns unproven whether any
governmental structure other than one based on a system of separat on of powers could avo d such harmful results.


c  
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.    7 *  
) +([Colonel þ chard@Judge Advocate General's Corps, Un ted States Army, ³Fund ng "Non-Trad t onal"
M l tary Operat ons: The Allur ng Myth Of A Pres dent al Power Of The Purse´ M l tary Law þev ew 155 M l. L.
þev. 1, Lex s]
F nally, f a s tuat on s suff c ently grave and an operat on s essent al to nat onal secur ty, the Pres dent has
the raw, phys cal power--but not the legal author ty--to spend publ c funds w thout congress onal approval,
after wh ch he or she can e ther seek congress onal approbat on or attempt to weather the result ng pol t cal
storm. To the Pres dent's mmed ate advantage s the fact that the only sure means of d rectly stopp ng such
unconst tut onal conduct s mpeachment. 703 Congress could, however, [*149] certa nly make a Pres dent's
l fe m serable through other means, such as deny ng requested leg slat on or appropr at ons, delay ng
conf rmat on of pres dent al appo ntments, and conduct ng publ c nvest gat ons nto the Pres dent's act ons.


  !   &


3  $R+LJay, Sen or þesearch Fellow, Nat¶l Defense U, Wash ngton Quarterly, Autumn, Lex s]
. ,  
Thus, t s demonstrably clear that, n the absence of b part sansh p, deal ng w th the new nternat onal system w ll be d ff cult at best and at t mes next to mposs ble
*   $, 0  1    ', 0    1n ted States as a cred ble negot at ng partner,
ally, or deterrent aga nst wanton aggress on. 4   &*    @!@  *  0 
. The appeal, then, to recreate anew as the hallmark of U.S. efforts abroad the pred ctab l ty and resolve that can only come from
b part sansh p at home s as cr t cal as dur ng the per lous days follow ng World War II. B part sansh p n Context The ease of
construct ng b part sansh p, however, should not be overstated. Its halcyon years are often deal ed. People forget that the golden years
from Pearl Harbor to the Tet offens ve were the except on rather than the rule. Consensus was not a preva l ng character st c n the f rst
170 years of the þepubl c. Cr t cs have noted w th just f cat on that t was the clear lack of purpose regard ng v gorous U.S. nvolvement
n world affa rs that led to the U.S. reject on of membersh p n the League of Nat ons. In no small measure, th s reject on led to the 20-
year cr s s that resulted n the r se of H tler. Proponents of b part sansh p po nt out ts crown ng ach evements. Unprecedented un ty
between the two pol t cal part es made t poss ble for Pres dent Harry S. Truman and a þepubl can senator, Arthur H. Vandenberg (þ-
M ch.), to jo n forces and create such monumental ach evements as the Marshall Plan, the Truman Doctr ne, the North Atlant c All ance,
and the Un ted Nat ons Charter. Desp te stra ns between the two part es over the Korean War and Ch na, to name but two ssues, that
un ty held f rm and enabled Un ted States to act w th cont nu ty and cons stency. All es saw that the Un ted States was strong and
rel able, and the unm stakable message to adversar es was that the Un ted States would ab de by ts comm tments. Some argue that t
was the fore gn pol cy consensus prevalent dur ng the Cold War that made poss ble the trag c U.S. nvolvement n the V etnam War. But
th s argument n no way nval dates the benef ts of b part sansh p and, n the case of V etnam, represents an overs mpl f cat on of the
facts. The fa lure of U.S. nvolvement n Southeast As a had as much to do w th the un que c rcumstances of the war tself, wh ch were
exacerbated by the then current theor es of l m ted war f ght ng. These factors, n conjunct on w th the profound domest c turmo l on
both domest c and fore gn pol cy that was tear ng at the U.S. pol t cal fabr c, made a compl cated and protracted war abroad v rtually
mposs ble to prosecute. More generally, the fact rema ns that the percept on of strength rest ng on b part san un ty has been cruc al to
the Un ted States n t mes of cr s s. Th s pr nc ple was most v v dly d splayed by the b part san support for Pres dent John F. Kennedy
dur ng the Cuban m ss le cr s s. Had the Sov ets felt the Un ted States was d v ded, the s tuat on m ght have ended n trag c defeat or
qu te poss bly n a devastat ng war. Although h story w ll be the f nal judge, t could be argued that n the recent Gulf cr s s t was
prec sely the vast chasm that separated the þepubl cans from the Democrats over whether to use force or to employ sanct ons n order to
reverse Saddam Husse n's aggress on that led h m to calculate that the Un ted States would never actually employ s gn f cant m l tary
power. Th s encouraged h m to gnore the resolut ons passed by the Un ted Nat ons (UN) and wa t for the Un ted States to seek a
watered-down d plomat c comprom se. Certa nly Husse n's statements that the Amer can people would have to "face rows of coff ns' f
there were a war, echo ng statements emanat ng from lengthy Senate hear ngs and floor debate, were des gned to play nto the ant war
sent ment that wanted to "g ve sanct ons a chance." Trag cally, the percept on of d v s on and weakness at home made the necess ty for a
m l tary solut on almost nev table. Execut ve-Leg slat ve þelat ons: The Search for Balance 4*  of susta nable
b part sansh p effect ve execut ve-leg slat ve relat ons. After the V etnam War, however, the cold war fore gn pol cy
consensus, supported by harmon ous execut ve-leg slat ve relat ons and by both part es n Congress n a manner that m n m ed confl ct
over fore gn affa rs, was rudely shattered. Although t was not completely undone, as s often cla med by the pund ts, and central
elements of the postwar consensus enjoyed a fa r deree of support, t was severely frayed. As a result,   began  0
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Global Leadersh p Under the th rd opt on, the Un ted States would seek to reta n global leadersh p and to preclude the r se of a global r val or a return to
mult polar ty for the ndef n te future. On balance, th s s the best long-term gu d ng pr nc ple and v s on. Such a v s on s des rable not as an end n tself,
but because a world n wh ch the Un ted States exerc ses leadersh p would have tremendous advantages. F rst, the global env ronment would be more open
and more recept ve to Amer can values -- democracy, free markets, and the rule of law. Second, such a world would have a better chance of deal ng
cooperat vely w th the world's major problems, such as nuclear prol ferat on, threats of reg onal hegemony by renegade states, and low-level confl cts.
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Stroke of a Pen: Execut ve Orders and Pres dent al Power´, p. 121,
http://www.quest aschool.com/read/103282967?t tle=W th%20the%20Stroke%20of%20a%20Pe
n%3a%20Execut ve%20Orders%20and%20Pres dent al%20Power) CBC
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http://www.quest aschool.com/read/103282967?t tle=W th%20the%20Stroke%20of%20a%20Pe
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http://www.quest aschool.com/read/103282967?t tle=W th%20the%20Stroke%20of%20a%20Pe
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http://www.quest aschool.com/read/103282967?t tle=W th%20the%20Stroke%20of%20a%20Pe
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the Un on Address Cl nton announced h s ³Amer can Her tage þ vers´ n t at ve, n wh ch federal agency off c als would help
commun t es f nd and apply for env ronmental grants (the program's deta ls were fleshed out n a ser es of proposed rules, culm nat ng n
Execut ve Order 13061, ssued n September 1997). 40 The program d d not comm t any funds, create new env ronmental regulat ons,
change any laws, or mpose any requ rements at all on local governments or the pr vate sector. 41 St ll, conservat ve property-r ghts
groups cla med t was ³a mass ve consp racy to extend federal, and perhaps fore gn, control over the nat on's 3.5 m ll on m les of r vers
and streams, over watersheds, even over pr vate r verfront property.´ 42 þepresentat ve Helen Chenoweth (þ-Idaho) denounced the
n t at ve as a ³fl ght from democracy,´ and attempted (unsuccessfully, so far) to stop the program both leg slat vely and through the
courts. 43 Dur ng 1995 Senate hear ngs held n the aftermath of the Oklahoma C ty bomb ng, John Trochman, head of the M l t a of
Montana, compla ned that G   **  *  !    &  *    
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a research parad gm that emphas es the pres dent's leadersh p sk lls and strateg c acumen, not the legal bas s of pres dent al power, as
the keys to pol t cal success.
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Pol t cs, ³Pres dent or K ng? The Use and Abuse of Execut ve Orders n Modern-Day Amer ca´,
http://he nonl ne.org/HOL/Page?men_tab=srchresults&handle=he n.journals/jleg28& d=8&s e=
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power, but to gnore the problem once a pres dent from one¶s own party has been elected. 3    
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the nature of execut ve power and the l m tat ons that should be placed upon t s not new. S nce the found ng
of out country, Pres dents, congressman, scholars, and nd v dual c t ens have sought to properly def ne the
boundar es of the execut ve's power. Two Pres dents, who served n the early 1900s are often sa d to
exempl fy the two oppos ng v ews on the proper use of execut ve power.' Pres dent Theodore þoosevelt, a
proponent of a powerful execut ve. once stated:
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http://www.quest aschool.com/read/103282967?t tle=W th%20the%20Stroke%20of%20a%20Pe
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Inst tute, Consort um News, ³Bush Out of L ne In Scold ng Pelos ´,
http://www.consort umnews.com/2007/040307a.htmlQ1) CBC
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Instead of publ cly condemn ng Speaker Pelos for carry ng out the b part san Iraq Study Group¶s heretofore±
langu sh ng recommendat on of actually talk ng to Syr a to resolve b lateral ssues, the Pres dent should be
happy that someone n the U.S. government s w ll ng to take r sks w th one of Amer ca¶s major adversar es
n the reg on.