(Pix (c) Larry Catá Backer 2014)
Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.
--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,
Grounded in the principles of the sociology of law,
the course has morphed into an effort to introduce students to law as a
self-referencing system with its own particular structures, premises,
constraints and language, with its own logic and taboos and its own
means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice,
Chichester : John Wiley and Sons Ltd, 1999) is then a critical element
in the way in which the legal system (in this case of the United States)
interacts with the world, both as a legal and as a
socio-economic-political actor. The course has also expanded from its
original narrow and technical focus, to a broader focus on principles
and the use of language and logic to build and operate a system of law.
That broadening has made it possible to offer the course not just to
first year law students, but also to graduate students in the social
sciences and in international affairs, as a grounding in the legal
systems that are important in their respective fields.
This and the posts that follow produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.
This post includes a draft of the first chapter of Part III (Institutional Architecture of Law and Governance: The United States and Law Making) -- Chapter 12 (The General Government; Separation of Powers and Checks and Balances).
This and the posts that follow produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.
This post includes a draft of the first chapter of Part III (Institutional Architecture of Law and Governance: The United States and Law Making) -- Chapter 12 (The General Government; Separation of Powers and Checks and Balances).
Chapter 12The General Government; Separation of Powers and Checks and Balances
I. Introduction.We have examined the nature of the principal object of the study of the legal system of the United States, its forms of law and their systematization. Part I of the materials focused on the identification and characteristics of the principles forms that law takes in the United States—common law, equity, statutes and administrative regulations, along with the legal effects of private governance and administrative reporting techniques. Part II considered the forms in which these legal sub-systems are systemized. We considered the theories under which government is organized and their application to the United States, the development of a hierarchy of law, its relation to the law developed in international for a, and then considered the issue of legal integrity through the notion of “rule of law” as a political and juridical concept.In this Part III, we turn to a consideration of those institutions the United States has created to wield law. We will briefly review the basics of the organization of the American state. We engage in this review not for purposes of a civics lesson but to acquire a more sophisticated understanding of the places where law originates and the ways in which societies can divide the power to make, apply and enforce law. We start with the General Government, considering the division of its power into three “bundles”—(a) Executive; (b) Legislative; (c) Judicial. We then consider the way in which these power divisions are policed by introducing the concepts of separation of powers and checks and balances. We start in this chapter with an introduction ot the extent and limits of executive power, and the way in which law is used to constrain its exercise.II. Chapter Readings· Division of Power: (a) Executive; (b) Legislative; (c) Judicial --U.S. Constitution,[1] Arts. I-III· Separation of Powers and Checks and Balances· Youngstown Sheet & Tube Co. v. Sawyer[2] (The Steel Seizure Case), 343 U.S. 579 (1952)· United States v. Belmont, 301 U.S. 324 (1937)__________U.S. Constitution, Arts. I, II, IIINotes and Questions.1. Compare the provisions of Articles I-III with the list of grievances interposed in the Declaration of Independence considered in Part II of these materials. To what extent is there overlap between the limitations on the federal government and the provisions of the constitution?2. Might one consider some of these provisions to suggests that the constitution might embrace an anti-tyranny principle, that is a principle that power ought not to be wielded either without a source in law or without a check? These provisions together might be grouped as the “checks and balances” approach to power division in the Constitution. To what extent do the provisions suggest a principle of efficient government, that is that government ought to be able to function to achieve its objectives? These provisions together might be grouped together as the separation of powers approach to power division. Which is the stronger principle?__________YOUNGSTOWN SHEET & TUBE CO. ET AL. v. SAWYER
No. 744
SUPREME COURT OF THE UNITED STATES343 U.S. 579; 72 S. Ct. 863; 96 L. Ed. 1153May 12-13, 1952, Argued
June 2, 1952, Decided[Available at: http://www.law.cornell.edu/supremecourt/text/343/579]MR. JUSTICE BLACK delivered the opinion of the Court.We are asked to decide whether the President was acting within his constitutional power when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation’s steel mills. The mill owners argue that the President’s order amounts to lawmaking, a legislative function which the Constitution has expressly confided to the Congress and not to the President. The Government’s position is that the order was made on findings of the President that his action was necessary to avert a national catastrophe which would inevitably result from a stoppage of steel production, and that in meeting this grave emergency the President was acting within the aggregate of his constitutional powers as the Nation’s Chief Executive and the Commander in Chief of the Armed Forces of the United States. The issue emerges here from the following series of events:In the latter part of 1951, a dispute arose between the steel companies and their employees over terms and conditions that should be included in new collective bargaining agreements. Long-continued conferences failed to resolve the dispute. On December 18, 1951, the employees’ representative, United Steelworkers of America, C. I. O., gave notice of an intention to strike when the existing bargaining agreements expired on December 31. The Federal Mediation and Conciliation Service then intervened in an effort to get labor and management to agree. This failing, the President on December 22, 1951, referred the dispute to the Federal Wage Stabilization Board[3] to investigate and make recommendations for fair and equitable terms of settlement. This Board’s report resulted in no settlement. On April 4, 1952, the Union gave notice of a nation-wide strike called to begin at 12:01 a. m. April 9. The indispensability of steel as a component of substantially all weapons and other war materials led the President to believe that the proposed work stoppage would immediately jeopardize our national defense and that governmental seizure of the steel mills was necessary in order to assure the continued availability of steel. Reciting these considerations for his action, the President, a few hours before the strike was to begin, issued Executive Order 10340, a copy of which is attached as an appendix, post, p. 589. The order directed the Secretary of Commerce to take possession of most of the steel mills and keep them running. The Secretary immediately issued his own possessory orders, calling upon the presidents of the various seized companies to serve as operating managers for the United States. They were directed to carry on their activities in accordance with regulations and directions of the Secretary. The next morning the President sent a message to Congress reporting his action. Cong. Rec., April 9, 1952, p. 3962. Twelve days later he sent a second message. Cong. Rec., April 21, 1952, p. 4192. Congress has taken no action.Obeying the Secretary’s orders under protest, the companies brought proceedings against him in the District Court. Their complaints charged that the seizure was not authorized by an act of Congress or by any constitutional provisions. The District Court was asked to declare the orders of the President and the Secretary invalid and to issue preliminary and permanent injunctions restraining their enforcement. Opposing the motion for preliminary injunction, the United States asserted that a strike disrupting steel production for even a brief period would so endanger the well-being and safety of the Nation that the President had “inherent power” to do what he had done―power “supported by the Constitution, by historical precedent, and by court decisions.” The Government also contended that in any event no preliminary injunction should be issued because the companies had made no showing that their available legal remedies were inadequate or that their injuries from seizure would be irreparable. Holding against the Government on all points, the District Court on April 30 issued a preliminary injunction restraining the Secretary from “continuing the seizure and possession of the plants . . . and from acting under the purported authority of Executive Order No. 10340.”103 F.Supp. 569. On the same day the Court of Appeals stayed the District Court’s injunction. 90 U. S. App. D. C., 197 F.2d 582. Deeming it best that the issues raised be promptly decided by this Court, we granted certiorari on May 3 and set the cause for argument on May 12. 343 U.S. 937.Two crucial issues have developed: First. Should final determination of the constitutional validity of the President’s order be made in this case which has proceeded no further than the preliminary injunction stage? Second. If so, is the seizure order within the constitutional power of the President?I.* * * * *II.The President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. There is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied. Indeed, we do not understand the Government to rely on statutory authorization for this seizure. There are two statutes which do authorize the President to take both personal and real property under certain conditions.[4] However, the Government admits that these conditions were not met and that the President’s order was not rooted in either of the statutes. The Government refers to the seizure provisions of one of these statutes (§ 201 (b) of the Defense Production Act) as “much too cumbersome, involved, and time-consuming for the crisis which was at hand.”Moreover, the use of the seizure technique to solve labor disputes in order to prevent work stoppages was not only unauthorized by any congressional enactment; prior to this controversy, Congress had refused to adopt that method of settling labor disputes. When the Taft-Hartley Act was under consideration in 1947, Congress rejected an amendment which would have authorized such governmental seizures in cases of emergency.[5] Apparently it was thought that the technique of seizure, like that of compulsory arbitration, would interfere with the process of collective bargaining.[6] Consequently, the plan Congress adopted in that Act did not provide for seizure under any circumstances. Instead, the plan sought to bring about settlements by use of the customary devices of mediation, conciliation, investigation by boards of inquiry, and public reports. In some instances temporary injunctions were authorized to provide cooling-off periods. All this failing, unions were left free to strike after a secret vote by employees as to whether they wished to accept their employers’ final settlement offer.[7]It is clear that if the President had authority to issue the order he did, it must be found in some provision of the Constitution. And it is not claimed that express constitutional language grants this power to the President. The contention is that presidential power should be implied from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article II which say that “The executive Power shall be vested in a President . . .”; that “he shall take Care that the Laws be faithfully executed”; and that he “shall be Commander in Chief of the Army and Navy of the United States.”The order cannot properly be sustained as an exercise of the President’s military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though “theater of war”be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation’s lawmakers, not for its military authorities.Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that “All legislative Powers herein granted shall be vested in a Congress of the United States . . . .”* * * *The President’s order does not direct that a congressional policy be executed in a manner prescribed by Congress―it directs that a presidential policy be executed in a manner prescribed by the President. The preamble of the order itself, like that of many statutes, sets out reasons why the President believes certain policies should be adopted, proclaims these policies as rules of conduct to be followed, and again, like a statute, authorizes a government official to promulgate additional rules and regulations consistent with the policy proclaimed and needed to carry that policy into execution. The power of Congress to adopt such public policies as those proclaimed by the order is beyond question. It can authorize the taking of private property for public use. It can make laws regulating the relationships between employers and employees, prescribing rules designed to settle labor disputes, and fixing wages and working conditions in certain fields of our economy. The Constitution does not subject this lawmaking power of Congress to presidential or military supervision or control.It is said that other Presidents without congressional authority have taken possession of private business enterprises in order to settle labor disputes. But even if this be true, Congress has not thereby lost its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution.* * * * *The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand.The judgment of the District Court isAffirmed.MR. JUSTICE FRANKFURTER.Although the considerations relevant to the legal enforcement of the principle of separation of powers seem to me more complicated and flexible than may appear from what MR. JUSTICE BLACK has written, I join his opinion because I thoroughly agree with the application of the principle to the circumstances of this case.* * * * *To that end they rested the structure of our central government on the system of checks and balances. For them the doctrine of separation of powers was not mere theory; it was a felt necessity. Not so long ago it was fashionable to find our system of checks and balances obstructive to effective government. It was easy to ridicule that system as outmoded―too easy. The experience through which the world has passed in our own day has made vivid the realization that the Framers of our Constitution were not inexperienced doctrinaires. These long-headed statesmen had no illusion that our people enjoyed biological or psychological or sociological immunities from the hazards of concentrated power. It is absurd to see a dictator in a representative product of the sturdy democratic traditions of the Mississippi Valley. The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.The Framers, however, did not make the judiciary the overseer of our government. They were familiar with the revisory functions entrusted to judges in a few of the States and refused to lodge such powers in this Court. Judicial power can be exercised only as to matters that were the traditional concern of the courts at Westminster, and only if they arise in ways that to the expert feel of lawyers constitute “Cases” or “Controversies.”* * * * *The issue before us can be met, and therefore should be, without attempting to define the President’s powers comprehensively.* * * * *The question before the Court comes in this setting. Congress has frequently―at least 16 times since 1916―specifically provided for executive seizure of production, transportation, communications, or storage facilities. In every case it has qualified this grant of power with limitations and safeguards. This body of enactments―summarized in tabular form in Appendix I, post, p. 615―demonstrates that Congress deemed seizure so drastic a power as to require that it be carefully circumscribed whenever the President was vested with this extraordinary authority. The power to seize has uniformly been given only for a limited period or for a defined emergency, or has been repealed after a short period. Its exercise has been restricted to particular circumstances such as “time of war or when war is imminent,” the needs of “public safety” or of “national security or defense,” or “urgent and impending need.” The period of governmental operation has been limited, as, for instance, to “sixty days after the restoration of productive efficiency.” Seizure statutes usually make executive action dependent on detailed conditions: for example, (a) failure or refusal of the owner of a plant to meet governmental supply needs or (b) failure of voluntary negotiations with the owner for the use of a plant necessary for great public ends. Congress often has specified the particular executive agency which should seize or operate the plants or whose judgment would appropriately test the need for seizure. Congress also has not left to implication that just compensation be paid; it has usually legislated in detail regarding enforcement of this litigation-breeding general requirement. (See Appendix I, post, p. 615.)Congress in 1947 was again called upon to consider whether governmental seizure should be used to avoid serious industrial shutdowns. Congress decided against conferring such power generally and in advance, without special Congressional enactment to meet each particular need.* * * * *In adopting the provisions which it did, by the Labor Management Relations Act of 1947, for dealing with a “national emergency” arising out of a breakdown in peaceful industrial relations, Congress was very familiar with Governmental seizure as a protective measure. On a balance of considerations, Congress chose not to lodge this power in the President. It chose not to make available in advance a remedy to which both industry and labor were fiercely hostile.* * * * *It cannot be contended that the President would have had power to issue this order had Congress explicitly negated such authority in formal legislation. Congress has expressed its will to withhold this power from the President as though it had said so in so many words. The authoritatively expressed purpose of Congress to disallow such power to the President and to require him, when in his mind the occasion arose for such a seizure, to put the matter to Congress and ask for specific authority from it, could not be more decisive if it had been written into §§ 206-210 of the Labor Management Relations Act of 1947.* * * * *A scheme of government like ours no doubt at times feels the lack of power to act with complete, all-embracing, swiftly moving authority. No doubt a government with distributed authority, subject to be challenged in the courts of law, at least long enough to consider and adjudicate the challenge, labors under restrictions from which other governments are free. It has not been our tradition to envy such governments. In any event our government was designed to have such restrictions. The price was deemed not too high in view of the safeguards which these restrictions afford. * * * *MR. JUSTICE DOUGLAS, concurring.* * *MR. JUSTICE JACKSON, concurring in the judgment and opinion of the Court.* * *The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, . . . .1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty.* * * * *2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.* * * * *3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject.4. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.Into which of these classifications does this executive seizure of the steel industry fit? It is eliminated from the first by admission, for it is conceded that no congressional authorization exists for this seizure. That takes away also the support of the many precedents and declarations which were made in relation, and must be confined, to this category.* * * * *Can it then be defended under flexible tests available to the second category? It seems clearly eliminated from that class because Congress has not left seizure of private property an open field but has covered it by three statutory policies inconsistent with this seizure. In cases where the purpose is to supply needs of the Government itself, two courses are provided: one, seizure of a plant which fails to comply with obligatory orders placed by the Government; another, condemnation of facilities, including temporary use under the power of eminent domain. The third is applicable where it is the general economy of the country that is to be protected rather than exclusive governmental interests. None of these were invoked. In choosing a different and inconsistent way of his own, the President cannot claim that it is necessitated or invited by failure of Congress to legislate upon the occasions, grounds and methods for seizure of industrial properties.This leaves the current seizure to be justified only by the severe tests under the third grouping, where it can be supported only by any remainder of executive power after subtraction of such powers as Congress may have over the subject.* * * * *The Solicitor General seeks the power of seizure in three clauses of the Executive Article, the first reading, “The executive Power shall be vested in a President of the United States of America.” * * * * I cannot accept the view that this clause is a grant in bulk of all conceivable executive power but regard it as an allocation to the presidential office of the generic powers thereafter stated.The clause on which the Government next relies is that “The President shall be Commander in Chief of the Army and Navy of the United States . . . .” . . . . It undoubtedly puts the Nation’s armed forces under presidential command. . . . .That seems to be the logic of an argument tendered at our bar―that the President having, on his own responsibility, sent American troops abroad derives from that act “affirmative power” to seize the means of producing a supply of steel for them. To quote, “Perhaps the most forceful illustration of the scope of Presidential power in this connection is the fact that American troops in Korea, whose safety and effectiveness are so directly involved here, were sent to the field by an exercise of the President’s constitutional powers.” Thus, it is said, he has invested himself with “war powers.”* * * * *Assuming that we are in a war de facto, whether it is or is not a war de jure, does that empower the Commander in Chief to seize industries he thinks necessary to supply our army? The Constitution expressly places in Congress power “to raise and support Armies” and “to provide and maintain a Navy.” (Emphasis supplied.) This certainly lays upon Congress primary responsibility for supplying the armed forces. Congress alone controls the raising of revenues and their appropriation and may determine in what manner and by what means they shall be spent for military and naval procurement. I suppose no one would doubt that Congress can take over war supply as a Government enterprise. On the other hand, if Congress sees fit to rely on free private enterprise collectively bargaining with free labor for support and maintenance of our armed forces, can the Executive, because of lawful disagreements incidental to that process, seize the facility for operation upon Government-imposed terms?There are indications that the Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants.* * * * *The third clause in which the Solicitor General finds seizure powers is that “he shall take Care that the Laws be faithfully executed . . . .” That authority must be matched against words of the Fifth Amendment that “No person shall be . . . deprived of life, liberty or property, without due process of law . . . .” One gives a governmental authority that reaches so far as there is law, the other gives a private right that authority shall go no farther. These signify about all there is of the principle that ours is a government of laws, not of men, and that we submit ourselves to rulers only if under rules.The Solicitor General lastly grounds support of the seizure upon nebulous, inherent powers never expressly granted but said to have accrued to the office from the customs and claims of preceding administrations. The plea is for a resulting power to deal with a crisis or an emergency according to the necessities of the case, the unarticulated assumption being that necessity knows no law.Loose and irresponsible use of adjectives colors all nonlegal and much legal discussion of presidential powers. “Inherent” powers, “implied” powers, “incidental” powers, “plenary” powers, “war” powers and “emergency” powers are used, often interchangeably and without fixed or as* * * * *The claim of inherent and unrestricted presidential powers has long been a persuasive dialectical weapon in political controversy. While it is not surprising that counsel should grasp support from such unadjudicated claims of power, a judge cannot accept self-serving press statements of the attorney for one of the interested parties as authority in answering a constitutional question, even if the advocate was himself. But prudence has counseled that actual reliance on such nebulous claims stop short of provoking a judicial test.* * * * *This brings us to a further crucial question. Does the President, in such a situation, have inherent constitutional power to seize private property which makes congressional action in relation thereto unnecessary? We find no such power available to him under the present circumstances. The present situation is not comparable to that of an imminent invasion or threatened attack. We do not face the issue of what might be the President’s constitutional power to meet such catastrophic situations. Nor is it claimed that the current seizure is in the nature of a military command addressed by the President, as Commander-in-Chief, to a mobilized nation waging, or imminently threatened with, total war.The controlling fact here is that Congress, within its constitutionally delegated power, has prescribed for the President specific procedures, exclusive of seizure, for his use in meeting the present type of emergency. Congress has reserved to itself the right to determine where and when to authorize the seizure of property in meeting such an emergency. Under these circumstances, the President’s order of April 8 invaded the jurisdiction of Congress. It violated the essence of the principle of the separation of governmental powers. Accordingly, the injunction against its effectiveness should be sustained.MR. JUSTICE CLARK, concurring in the judgment of the Court.* * * * *DISSENTMR. CHIEF JUSTICE VINSON, with whom MR. JUSTICE REED and MR. JUSTICE MINTON join, dissenting.The President of the United States directed the Secretary of Commerce to take temporary possession of the Nation’s steel mills during the existing emergency because “a work stoppage would immediately jeopardize and imperil our national defense and the defense of those joined with us in resisting aggression, and would add to the continuing danger of our soldiers, sailors, and airmen engaged in combat in the field.” The District Court ordered the mills returned to their private owners on the ground that the President’s action was beyond his powers under the Constitution.This Court affirms. Some members of the Court are of the view that the President is without power to act in time of crisis in the absence of express statutory authorization. Other members of the Court affirm on the basis of their reading of certain statutes. Because we cannot agree that affirmance is proper on any ground, and because of the transcending importance of the questions presented not only in this critical litigation but also to the powers of the President and of future Presidents to act in time of crisis, we are compelled to register this dissent.I.* * * *II.The steel mills were seized for a public use. The power of eminent domain, invoked in this case, is an essential attribute of sovereignty and has long been recognized as a power of the Federal Government. Kohl v. United States, 91 U.S. 367 (1876). Plaintiffs cannot complain that any provision in the Constitution prohibits the exercise of the power of eminent domain in this case. The Fifth Amendment provides: “nor shall private property be taken for public use, without just compensation.” It is no bar to this seizure for, if the taking is not otherwise unlawful, plaintiffs are assured of receiving the required just compensation. United States v. Pewee Coal Co., 341 U.S. 114 (1951).Admitting that the Government could seize the mills, plaintiffs claim that the implied power of eminent domain can be exercised only under an Act of Congress; under no circumstances, they say, can that power be exercised by the President unless he can point to an express provision in enabling legislation. This was the view adopted by the District Judge when he granted the preliminary injunction. Without an answer, without hearing evidence, he determined the issue on the basis of his “fixed conclusion . . . that defendant’s acts are illegal” because the President’s only course in the face of an emergency is to present the matter to Congress and await the final passage of legislation which will enable the Government to cope with threatened disaster.Under this view, the President is left powerless at the very moment when the need for action may be most pressing and when no one, other than he, is immediately capable of action. Under this view, he is left powerless because a power not expressly given to Congress is nevertheless found to rest exclusively with Congress.* * * *III.A review of executive action demonstrates that our Presidents have on many occasions exhibited the leadership contemplated by the Framers when they made the President Commander in Chief, and imposed upon him the trust to “take Care that the Laws be faithfully executed.” With or without explicit statutory authorization, Presidents have at such times dealt with national emergencies by acting promptly and resolutely to enforce legislative programs, at least to save those programs until Congress could act. Congress and the courts have responded to such executive initiative with consistent approval. * * * *V.* * * *VI.The diversity of views expressed in the six opinions of the majority, the lack of reference to authoritative precedent, the repeated reliance upon prior dissenting opinions, the complete disregard of the uncontroverted facts showing the gravity of the emergency and the temporary nature of the taking all serve to demonstrate how far afield one must go to affirm the order of the District Court.The broad executive power granted by Article II to an officer on duty 365 days a year cannot, it is said, be invoked to avert disaster. Instead, the President must confine himself to sending a message to Congress recommending action. Under this messenger-boy concept of the Office, the President cannot even act to preserve legislative programs from destruction so that Congress will have something left to act upon. There is no judicial finding that the executive action was unwarranted because there was in fact no basis for the President’s finding of the existence of an emergency for, under this view, the gravity of the emergency and the immediacy of the threatened disaster are considered irrelevant as a matter of law.* * * *As the District Judge stated, this is no time for “timorous” judicial action. But neither is this a time for timorous executive action. Faced with the duty of executing the defense programs which Congress had enacted and the disastrous effects that any stoppage in steel production would have on those programs, the President acted to preserve those programs by seizing the steel mills. There is no question that the possession was other than temporary in character and subject to congressional direction―either approving, disapproving or regulating the manner in which the mills were to be administered and returned to the owners. The President immediately informed Congress of his action and clearly stated his intention to abide by the legislative will. No basis for claims of arbitrary action, unlimited powers or dictatorial usurpation of congressional power appears from the facts of this case. On the contrary, judicial, legislative and executive precedents throughout our history demonstrate that in this case the President acted in full conformity with his duties under the Constitution. Accordingly, we would reverse the order of the District Court.__________United States v. Belmont301 U.S. 324 (1937)MR. JUSTICE SUTHERLAND delivered the opinion of the Court.This is an action at law brought by petitioner against respondents in a federal district court to recover a sum of money deposited by a Russian corporation (Petrograd [p326] Metal Works) with August Belmont, a private banker doing business in New York City under the name of August Belmont & Co. August Belmont died in 1924, and respondents are the duly appointed executors of his will. A motion to dismiss the complaint for failure to state facts sufficient to constitute a cause of action was sustained by the district court, and its judgment was affirmed by the court below. 85 F.2d 542. The facts alleged, so far as necessary to be stated, follow.The corporation had deposited with Belmont, prior to 1918, the sum of money which petitioner seeks to recover. In 1918, the Soviet Government duly enacted a decree by which it dissolved, terminated and liquidated the corporation (together with others), and nationalized and appropriated all of its property and assets of every kind and wherever situated, including the deposit account with Belmont. As a result, the deposit became the property of the Soviet Government, and so remained until November 16, 1933, at which time the Soviet Government released and assigned to petitioner all amounts due to that government from American nationals, including the deposit account of the corporation with Belmont. Respondents failed and refused to pay the amount upon demand duly made by petitioner.The assignment was effected by an exchange of diplomatic correspondence between the Soviet Government and the United States. The purpose was to bring about a final settlement of the claims and counterclaims between the Soviet Government and the United States, and it was agreed that the Soviet Government would take no steps to enforce claims against American nationals, but all such claims were released and assigned to the United States, with the understanding that the Soviet Government was to be duly notified of all amounts realized by the United States from such release and assignment. The assignment and requirement for notice [p327] are parts of the larger plan to bring about a settlement of the rival claims of the high contracting parties. The continuing and definite interest of the Soviet Government in the collection of assigned claims is evident, and the case, therefore, presents a question of public concern, the determination of which well might involve the good faith of the United States in the eyes of a foreign government. The court below held that the assignment thus effected embraced the claim here in question, and with that we agree.That court, however, took the view that the situs of the bank deposit was within the State of New York; that in no sense could it be regarded as an intangible property right within Soviet territory, and that the nationalization decree, if enforced, would put into effect an act of confiscation. And it held that a judgment for the United States could not be had, because, in view of that result, it would be contrary to the controlling public policy of the State of New York. The further contention is made by respondents that the public policy of the United States would likewise be infringed by such a judgment. The two questions thus presented are the only ones necessary to be considered.First. We do not pause to inquire whether, in fact, there was any policy of the State of New York to be infringed, since we are of opinion that no state policy can prevail against the international compact here involved.This court has held, Underhill v. Hernandez, 168 U.S. 250, that every sovereign state must recognize the independence of every other sovereign state, and that the courts of one will not sit in judgment upon the acts of the government of another done within its own territory.That general principle was applied in Oetjen v. Central Leather Co., 246 U.S. 297, to a case where an action in replevin had been brought in a New Jersey state court to recover a consignment of hides purchased in Mexico from [p328] General Villa. The title of the purchaser was assailed on the ground that Villa had confiscated the hides. Villa, it appeared, had seized the hides while conducting independent operations under the Carranza government, which, at the time of the seizure, had made much progress in its revolution in Mexico. The government of the United States, after the trial of the case in the state court, had recognized the government of Carranza, first as the de facto government of the Republic of Mexico and later as the government de jure. This court held that the conduct of foreign relations was committed by the Constitution to the political departments of the government, and the propriety of what may be done in the exercise of this political power was not subject to judicial inquiry or decision; that who is the sovereign of a territory is not a judicial question, but one the determination of which by the political departments conclusively binds the courts, and that recognition by these departments is retroactive, and validates all actions and conduct of the government so recognized from the commencement of its existence. "The principle," we said, p. 303,that the conduct of one independent government cannot be successfully questioned in the courts of another is as applicable to a case involving the title to property brought within the custody of a court, such as we have here, as it was held to be to the cases cited, in which claims for damages were based upon acts done in a foreign country, for it rests at last upon the highest considerations of international comity and expediency. To permit the validity of the acts of one sovereign State to be reexamined and perhaps condemned by the courts of another would very certainly "imperil the amicable relations between governments, and vex the peace of nations."Ricaud v. American Metal Co., 246 U.S. 304, 308-309, 310, is to the same effect.In A. M. Luther v. James Sagor & Co., L.R. [1921] 3 K.B. 532, the English Court of Appeal expressly approved [p329] and followed our decision in the Oetjen case. The English case involved that part of the same decree of the Soviet Government here under consideration which declared certain private woodworking establishments to be the property of the Republic. Under that decree, the Government seized plaintiff's factory in Russia, together with a stock of wood therein. Agents of the Republic sold a quantity of the stock so seized to the defendants, who imported it into England. Thereafter, the British Government recognized the Soviet Government as the de facto government of Russia. Upon these facts, the court held that, the British Government having thus recognized the Soviet Government, existing at a date before the decree in question, the validity of that decree and the sale of the wood to the defendants could not be impugned, and gave judgment for defendants accordingly. The court regarded the decree as one of confiscation, but was unable to see (Bankes, L.J. p. 546) how the courts could treat the decreeotherwise than as the expression by the de facto government of a civilized country of a policy which it considered to be in the best interest of that country. It must be quite immaterial for present purposes that the same views are not entertained by the Government of this country, are repudiated by the vast majority of its citizens, and are not recognized by our laws.Lord Justice Scrutton, in his opinion, discusses (pp. 557-559) the contention that the courts should refuse to recognize the decree and the titles derived under it as confiscatory and unjust, and concludes that the question is one not for the judges, but for the action of the sovereign through his ministers. "I do not feel able," he said,to come to the conclusion that the legislation of a state recognized by my Sovereign as an independent sovereign state is so contrary to moral principle that the judges ought not to recognize it. The responsibility for recognition or nonrecognition, with the consequences of each, rests on the [p330] political advisers of the Sovereign, and not on the judges.Further citation of authority seems unnecessary.We take judicial notice of the fact that, coincident with the assignment set forth in the complaint, the President recognized the Soviet Government, and normal diplomatic relations were established between that government and the Government of the United States, followed by an exchange of ambassadors. The effect of this was to validate, so far as this country is concerned, all acts of the Soviet Government here involved from the commencement of its existence. The recognition, establishment of diplomatic relations, the assignment, and agreements with respect thereto, were all parts of one transaction, resulting in an international compact between the two governments. That the negotiations, acceptance of the assignment, and agreements and understandings in respect thereof were within the competence of the President may not be doubted. Governmental power over internal affairs is distributed between the national government and the several states. Governmental power over external affairs is not distributed, but is vested exclusively in the national government. And in respect of what was done here, the Executive had authority to speak as the sole organ of that government. The assignment and the agreements in connection therewith did not, as in the case of treaties, as that term is used in the treaty-making clause of the Constitution (Art. II, § 2), require the advice and consent of the Senate.A treaty signifies "a compact made between two or more independent nations with a view to the public welfare." Altman & Co. v. United States, 224 U.S. 583, 600. But an international compact, as this was, is not always a treaty which requires the participation of the Senate. There are many such compacts, of which a protocol, a modus vivendi, a postal convention, and agreements [p331] like that now under consideration are illustrations. See 5 Moore, Int.Law Digest, 210-221. The distinction was pointed out by this court in the Altman case, supra, which arose under § 3 of the Tariff Act of 1897, authorizing the President to conclude commercial agreements with foreign countries in certain specified matters. We held that, although this might not be a treaty requiring ratification by the Senate, it was a compact negotiated and proclaimed under the authority of the President, and as such was a "treaty" within the meaning of the Circuit Court of Appeals Act, the construction of which might be reviewed upon direct appeal to this court.Plainly, the external powers of the United States are to be exercised without regard to state laws or policies. The supremacy of a treaty in this respect has been recognized from the beginning. Mr. Madison, in the Virginia Convention, said that, if a treaty does not supersede existing state laws as far as they contravene its operation, the treaty would be ineffective. "To counteract it by the supremacy of the state laws, would bring on the Union the just charge of national perfidy, and involve us in war." 3 Elliot's Debates 515. And see Ware v. Hylton, 3 Dall.199, 236-237. And while this rule in respect of treaties is established by the express language of cl. 2, Art. VI, of the Constitution, the same rule would result in the case of all international compacts and agreements from the very fact that complete power over international affairs is in the national government, and is not and cannot be subject to any curtailment or interference on the part of the several states. Compare United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 316, et seq. In respect of all international negotiations and compacts, and in respect of our foreign relations generally, state lines disappear. As to such purposes, the State of New York does not exist. Within the field of its powers, whatever [p332] the United States rightfully undertakes it necessarily has warrant to consummate. And when judicial authority is invoked in aid of such consummation, state constitutions, state laws, and state policies are irrelevant to the inquiry and decision. It is inconceivable that any of them can be interposed as an obstacle to the effective operation of a federal constitutional power. Cf. Missouri v. Holland, 252 U.S. 416; Asakura v. Seattle, 265 U.S. 332, 341.Second. The public policy of the United States relied upon as a bar to the action is that declared by the Constitution, namely, that private property shall not be taken without just compensation. But the answer is that our Constitution, laws and policies have no extraterritorial operation unless in respect of our own citizens. Compare United States v. Curtiss-Wright Export Corp., supra, at p. 318. What another country has done in the way of taking over property of its nationals, and especially of its corporations, is not a matter for judicial consideration here. Such nationals must look to their own government for any redress to which they may be entitled. So far as the record shows, only the rights of the Russian corporation have been affected by what has been done, and it will be time enough to consider the rights of our nationals when, if ever, by proper judicial proceeding, it shall be made to appear that they are so affected as to entitle them to judicial relief. The substantive right to the moneys, as now disclosed, became vested in the Soviet Government as the successor to the corporation, and this right that government has passed to the United States. It does not appear that respondents have any interest in the matter beyond that of a custodian. Thus far, no question under the Fifth Amendment is involved.It results that the complaint states a cause of action, and that the judgment of the court below to the contrary is erroneous. In so holding, we deal only with the case [p333] as now presented, and with the parties now before us. We do not consider the status of adverse claims, if there be any, of others not parties to this action. And nothing we have said is to be construed as foreclosing the assertion of any such claim to the fund involved, by intervention or other appropriate proceeding. We decide only that the complaint alleges facts sufficient to constitute a cause of action against the respondents.Judgment reversed.Notes and Questions.1. What is judicial notice and why did the opinion engage in the practice?2. Would you have decided the case in the same way had you applied the tests set out in the Youngstown Steel case?__________III. The General Government; Separation of Powers and Checks and BalancesThe first two sections of this course provided a general introduction to the core issues of a legal education. The first section considered the nature of law. It introduced students to the basic definitions of and then introduced students to the distinct forms of law that have risen in the West: customary law (common law), statutes, administrative regulations, and non-law law. The second section introduced government to the mix. It considered hierarchies of law and government. It considered the ways in which government is ordered through law and the hierarchies of law― from constitution to administrative regulation and court decisions. We were then introduced to the division between the system of laws that comprise a domestic legal order and those that make up the international legal order. We ended with a discussion of the ideologies of rule of law within this construction of the law-state, with a focus on the procedural rights developed under the U.S. constitution.We have now set the stage for a more targeted discussion of the specifics of the organization of the American law-state. For this class we review the organization of the general government of the United States―what is commonly now called its “federal” government. Then we consider the three animating principles that support its design―separation of powers, checks and balances and division of power between general and state government (federalism).
Central to the establishment of the organization of the general government were three key postulates of organizing government. The first was that government’s organization must be so structured that it would impede tyranny by the whole of government, by any part of it or by factions of individuals within it. The British imperial government was a model against which to structure such a government. To that end, the power of government must not be concentrated and ought to be diffused among as many parts and actors as necessary and prudent. The second was that government must be efficient. The confederation of the newly independent colonies after 1783, organized through its Articles of Confederation,[8] was a model against which to structure a more efficient state apparatus. The third was that the general government was meant to provide the benefits of aggregation with as little loss of local sovereignty as possible. To that end the construction of a unitary nation-state[9] was to be avoided and the powers of the general government, as against the residuary powers of the states were to be carefully circumscribed. The three premises were not entirely complementary. At its limit, institutional power fracture reduces the possibilities of tyranny but requires that a substantial amount of inefficiency be built into government. Efficient government tends to foster majoritarian tyranny and the challenge to the residuary powers of states. And the constraints on federal power tends to weaken both federal efficiency and avoid tyranny, it merely shifts those issues down to the state level.
But the founders provided a minimal framework for reconciling these premises, left their resolution to politics and appeared to assume that the give and take of politics would shift the consensus around, within limits, during the course of the Republic’s existence. And, indeed, to some large extent, that has been the case. The one spectacular failure, marked by the American Civil War[10] (1861-65), produced a somewhat radical restructuring of the state apparatus, the full measure of the potential of which was not realized until the economic[11] and racial[12] crises of the United States (1929-1969). Much of the Federal Constitution is devoted to the organization of a government in which these three premises could be harmonized to the greatest extent possible. The structural reconciliation is subsumed under the notion at the center of our study for today―separation of powers and checks and balances. At its core both are framed around the division of the entire authority of the federal government into three distinct branches: executive, legislative and judicial (separation of powers). Further, the extent of the powers of each was thought to be distinctly circumscribed in the text of the constitution itself, with the remainder of the extent of assertion of governmental power left to the states (federalism). Lastly, the assertion of even the core of executive, legislative and judicial power could not be successfully or fully undertaken without the cooperation of at least one of the other branches of government (checks and balances).Those protections of checks and balances and federalism are only partially dependent on the application of the “rules” built into the constitution for the structure of state governmental organs. As important is the political sphere is determining the specific scope of relations among the branches. Thus, for example, before the beginning of the 20th century and the reform of the federal constitution, the interests of states in the operation of the general government were protected because all members of the U.S. Senate[13] were chosen by the organs of state government and owed their loyalty to the states they represented (Art. I §3). Legislation in Congress, then, could not be enacted, unless the interests of a majority of states acceded to it. On the other hand, members of the House of Representatives[14] answer to the people of their district, and do so often, standing for re-election on short cycles (Art. I §2). The President, on the other hand, answered to a national constituency, but one selected through an electoral college that represented the will (until the later 19th century) of the electors chosen by local people to represent them in the selection of the leader of the general government (Art. II § 1). Because they each answered to different constituencies, they might represent distinct interests that could guide their invocation of both their inherent power and set the tone of their willingness to cooperate with the other branches. Federal judges are appointed for life and do not directly answer to the people. But they are selected by the president and confirmed by Congress, that may, to some extent undo any of the interpretive work of the federal courts (except where legislation is declared unconstitutional―but even then, the Congress and President can sometimes work around the specific point of constitutional contention). And in any case, the Congress can, if sufficiently goaded, affect the judiciary through its control of the organization of the courts and its budget. Likewise, though Congress determines the federal budget (Art. I § 7), the President decides when and how it is spent, and recently, whether it will be spent at all. All three branches are also limited in their jurisdictional reach. The powers of Congress are specified (Art. I. §§ 8,9), as are those of the President (Art. II §2). The judicial branch is specifically limited in its authority to hear cases (Art. III, §2). Moreover, the general government is constituted as a referee of sorts among states (Art. IV). The residuary power of states is also limited (Art.I §10). And, as we noted earlier, the Constitution establishes a hierarchy of authority with the legislative and judicial authority of the general government at the top (Art. VI).The divisions were originally defended in the Federal Papers.[15]|| Federalist No. 47[16] ||The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts; From the New York Packet. Friday, February 1, 1788.
Author: James Madison
To the People of the State of New York:
HAVING reviewed the general form of the proposed government and the general mass of power allotted to it, I proceed to examine the particular structure of this government, and the distribution of this mass of power among its constituent parts. One of the principal objections inculcated by the more respectable adversaries to the Constitution is,its supposed violation of the political maxim,that the legislative, executive, and judiciary departments ought to be separate and distinct. In the structure of the federal government, no regard, it is said, seems to have been paid to this essential precaution in favor of liberty. The several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts. No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded.
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal re-probation of the system. I persuade myself, however, that it will be made apparent to everyone, that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied. In order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct. The oracle who is always consulted and cited on this subject is the celebrated Montesquieu. If he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind. Let us endeavor, in the first place, to ascertain his meaning on this point. The British Constitution was to Montesquieu what Homer has been to the didactic writers on epic poetry. As the latter have considered the work of the immortal bard as the perfect model from which the principles and rules of the epic art were to be drawn, and by which all similar works were to be judged, so this great political critic appears to have viewed the Constitution of England as the standard, or to use his own expression, as the mirror of political liberty; and to have delivered, in the form of elementary truths, the several characteristic principles of that particular system. That we may be sure, then, not to mistake his meaning in this case, let us recur to the source from which the maxim was drawn. On the slightest view of the British Constitution, we must perceive that the legislative, executive, and judiciary departments are by no means totally separate and distinct from each other. The executive magistrate forms an integral part of the legislative authority. He alone has the prerogative of making treaties with foreign sovereigns, which, when made, have, under certain limitations, the force of legislative acts. All the members of the judiciary department are appointed by him, can be removed by him on the address of the two Houses of Parliament, and form, when he pleases to consult them, one of his constitutional councils. One branch of the legislative department forms also a great constitutional council to the executive chief, as, on another hand, it is the sole depositary of judicial power in cases of impeachment, and is invested with the supreme appellate jurisdiction in all other cases. The judges, again, are so far connected with the legislative department as often to attend and participate in its deliberations, though not admitted to a legislative vote. From these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,” or, “if the power of judging be not separated from the legislative and executive powers,” he did not mean that these departments ought to have no PARTIAL AGENCY in, or no CONTROL over, the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the WHOLE power of one department is exercised by the same hands which possess the WHOLE power of another department, the fundamental principles of a free constitution are subverted. This would have been the case in the constitution examined by him, if the king, who is the sole executive magistrate, had possessed also the complete legislative power, or the supreme administration of justice; or if the entire legislative body had possessed the supreme judiciary, or the supreme executive authority. This, however, is not among the vices of that constitution. The magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law; nor administer justice in person, though he has the appointment of those who do administer it. The judges can exercise no executive prerogative, though they are shoots from the executive stock; nor any legislative function, though they may be advised with by the legislative councils. The entire legislature can perform no judiciary act, though by the joint act of two of its branches the judges may be removed from their offices, and though one of its branches is possessed of the judicial power in the last resort. The entire legislature, again, can exercise no executive prerogative, though one of its branches constitutes the supreme executive magistracy, and another, on the impeachment of a third, can try and condemn all the subordinate officers in the executive department. The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. “When the legislative and executive powers are united in the same person or body,” says he, “there can be no liberty, because apprehensions may arise lest THE SAME monarch or senate should ENACT tyrannical laws to EXECUTE them in a tyrannical manner.” Again: “Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR.
Were it joined to the executive power, THE JUDGE might behave with all the violence of AN OPPRESSOR.” Some of these reasons are more fully explained in other passages; but briefly stated as they arehere, they sufficiently establish the meaning which we have put on this celebrated maxim of this celebrated author.
If we look into the constitutions of the several States, we find that, notwithstanding the emphatical and, in some instances, the unqualified terms in which this axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct. . . .In citing these cases, in which the legislative, executive, and judiciary departments have not been kept totally separate and distinct, I wish not to be regarded as an advocate for the particular organizations of the several State governments. I am fully aware that among the many excellent principles which they exemplify, they carry strong marks of the haste, and still stronger of the inexperience, under which they were framed. It is but too obvious that in some instances the fundamental principle under consideration has been violated by too great a mixture, and even an actual consolidation, of the different powers; and that in no instance has a competent provision been made for maintaining in practice the separation delineated on paper. What I have wished to evince is, that the charge brought against the proposed Constitution, of violating the sacred maxim of free government, is warranted neither by the real meaning annexed to that maxim by its author, nor by the sense in which it has hitherto been understood in America. This interesting subject will be resumed in the ensuing paper. Moreover, Congress may impeach and remove either the President or judges for misconduct.
Though the foundation of the organization of the general government of the United States is based on this separation of the powers of government among a legislative, executive and judicial branch, the exercise by each branch of the powers assigned to it could not be accomplished without the cooperation of one or both of the other branches. This system of checks and balances disciplines the potential excesses of the exercise of power by each branch of government under a system of separation of powers. Thus, for example, the President negotiates treaties but these must be ratified by the Senate. The Congress adopts statutes, but they must be approved by the President; yet even when the President vetoes legislation, Congress may override the veto by a 2/3 vote of both houses of Congress. The judicial branch interprets the laws and may invalidate legislation or presidential action beyond their constitutionally specified powers. But judges are appointed by the President and confirmed by the Senate. And Congress may modify the extent of the federal judiciary, limit judicial review under certain circumstances, and must pass a budget to support judicial activities. Taken together, separation of powers and checks and balances ensures that the unitary power of power of government is divided along functional lines, and that even the exercise of functionally divided power must be undertaken with a least a minimum of cooperation by the other branches. Where the branches of government collide, a constitutional crisis is likely to occur and the ultimate power of voters to hold executive and legislators accountable is supposed to serve as the political check on excess or bad behavior, at least as the voters may see it. (See, e.g., Abner Greene, “Checks and Balances in an Era of Presidential Lawmaking,” The University of Chicago Law Review 61(1) 123-196 (Winter, 1994)). Despite the structural constraints built into checks and balances mechanics in the Constitution, people worry that the exigencies of particular eras may create a situation in which one branch of government might become much more powerful than others. People sometimes then seek to consider whether the structural constraints of the constitution may be applied or interpreted in a way that readjusts the balances of power among the branches. (See, e.g., Eric Posner, “Balance of Powers Arguments and the Structural Constitution,”[17] Chicago Institute for Law and Economics Working Paper No. 622 (2d Series) (Nov. 2012) (arguing that balance of power theories are unworkable and normatively questionable, and that judges and scholars should abandon the balance them in favor of consider whether bureaucratic innovation is likely to improve policy outcomes.)). Alternatively, it is possible to understand that beyond the minimal structural framework of separation of powers and checks and balances, the actual inter relationship of the branches of government is left to politics and the ultimate preferences of voters, eventually and episodically expressed.
The complex interplay between the structural framework of separation of powers, checks and balances and the political realities of government have a strong political dimension. That is, the provisions are supposed to work through the political choices of the members of each branch whose actions are then ultimately accountable to the people—usually through elections. Thus, each branch may secure temporary and marginal advantage in the extent of their power vis a vis the others but only to the extent that ambiguities may be decided and within the scope of allowable acquiescence in the actions of the other branches. But as in other areas of U.S. law, the political interplay of the branches of government have been constrained through a long process of legalization. In effect, the law of the Constitution has been interpreted by the federal courts to impose certain structural constraints on political choices made by government officials. The outer boundaries of politics, then, is mediated by law—as interpreted by the courts. We consider these issues through the classic Steel Seizure Case, Youngstown Sheet & Tube Co. v. Sawyer,[18] 343 U.S. 579 (1952). The facts of the case remind the student that sometimes constitutional cases involving issues of separation of powers may touch on some of the most important, and divisive, political confrontations of American society. In this case, the facts emerge out of a long term clash between labor and capital in the remaking of post WWII American society fought at the height of one of the first and most intensive military engagements with their Cold War Marxist-Leninist counterparts (the Korean War[19]) and centered in political strategic gamesmanship between President and Congress for control of the national political agenda. (See Harry S Truman, Years of Trail and Hope[20] (Doubleday, 1956)).The majority opinion, written by Justice Black provided:In the latter part of 1951, a dispute arose between the steel companies and their employees over terms and conditions that should be included in new collective bargaining agreements. Long-continued conferences failed to resolve the dispute. On December 18, 1951, the employees’ representative, United Steelworkers of America, C. I. O., gave notice of an intention to strike when the existing bargaining agreements expired on December 31. The Federal Mediation and Conciliation Service then intervened in an effort to get labor and management to agree. This failing, the President on December 22, 1951, referred the dispute to the Federal Wage Stabilization Board to investigate and make recommendations for fair and equitable terms of settlement. This Board’s report resulted in no settlement. On April 4, 1952, the Union gave notice of a nation-wide strike called to begin at 12:01 a. m. April 9. The indispensability of steel as a component of substantially all weapons and other war materials led the President to believe that the proposed work stoppage would immediately jeopardize our national defense and that governmental seizure of the steel mills was necessary in order to assure the continued availability of steel. Reciting these considerations for his action, the President, a few hours before the strike was to begin, issued Executive Order 10340, a copy of which is attached as an appendix, post, p. 589. The order directed the Secretary of Commerce to take possession of most of the steel mills and keep them running. The Secretary immediately issued his own possessory orders, calling upon the presidents of the various seized companies to serve as operating managers for the United States. They were directed to carry on their activities in accordance with regulations and directions of the Secretary. The next morning the President sent a message to Congress reporting his action. Cong. Rec., April 9, 1952, p. 3962. Twelve days later he sent a second message. Cong. Rec., April 21, 1952, p. 4192. Congress has taken no action.
Obeying the Secretary’s orders under protest, the companies brought proceedings against him in the District Court. Their complaints charged that the seizure was not authorized by an act of Congress or by any constitutional provisions. The District Court was asked to declare the orders of the President and the Secretary invalid and to issue preliminary and permanent injunctions restraining their enforcement. Opposing the motion for preliminary injunction, the United States asserted that a strike disrupting steel production for even a brief period would so endanger the well-being and safety of the Nation that the President had “inherent power” to do what he had done ― power “supported by the Constitution, by historical precedent, and by court decisions.” The Government also contended that in any event no preliminary injunction should be issued because the companies had made no showing that their available legal remedies were inadequate or that their injuries from seizure would be irreparable. Holding against the Government on all points, the District Court on April 30 issued a preliminary injunction restraining the Secretary from “continuing the seizure and possession of the plants . . . and from acting under the purported authority of Executive Order No. 10340.” 103 F.Supp. 569. On the same day the Court of Appeals stayed the District Court’s injunction. . . . Deeming it best that the issues raised be promptly decided by this Court, we granted certiorari on May 3 and set the cause for argument on May 12. (Steel Seizure Case.)
The issue was quite straightforward:We are asked to decide whether the President was acting within his constitutional power when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation’s steel mills. The mill owners argue that the President’s order amounts to lawmaking, a legislative function which the Constitution has expressly confided to the Congress and not to the President. The Government’s position is that the order was made on findings of the President that his action was necessary to avert a national catastrophe which would inevitably result from a stoppage of steel production, and that in meeting this grave emergency the President was acting within the aggregate of his constitutional powers as the Nation’s Chief Executive and the Commander in Chief of the Armed Forces of the United States. (Steel Seizure Case.)The analysis was also straightforward (we do not discuss the initial issue here―whether the case was ripe for decision by the Supreme Court at the preliminary injunction stage of litigation). It is an excellent example of formalist[21] reasoning in U.S. judicial interpretation of statutes and constitutions. The formalist analysis undertaken by Justice Black is both short and elegant.
He starts with the general rule―the extent of the President’s power derives either from an act of Congress or from the Constitution. (Steel Seizure Case §II). There is no statute that expressly authorities the President to issue a valid Executive Order of the sort at issue here. Moreover the parties to the litigation did not suggest that there was any Congressional statute appears from which such power could be implied. However, there are two statutes that permit the President to do what he intends―seize the mills and ensure continuous production of war material. But the President chose not to invoke them. The reasons were obvious then―they took too long and cost too much money (“The Government refers to the seizure provisions of one of these statutes (§ 201 (b) of the Defense Production Act) as “much too cumbersome, involved, and time-consuming for the crisis which was at hand.”“ Ibid). But they were also less obvious―in the early 1950s, as the Cold War began, efforts to distinguish the democratic and capitalist West from the Marxist Leninist Totalitarian Soviet bloc included references to the way in which the West protected private property while the Soviets seized the hard earned factories and other productive forces of individuals. It would appear odd for the American President to do something quite similar to what the Soviets had been doing in Eastern Europe in aid of the American war effort against a Soviet satrap[22] in North Korea.
Justice Black alsonotes that Congress specifically rejected the sort of action the President attempted through the Executive Order device. “When the Taft-Hartley Act was under consideration in 1947, Congress rejected an amendment which would have authorized such governmental seizures in cases of emergency. Apparently it was thought that the technique of seizure, like that of compulsory arbitration, would interfere with the process of collective bargaining.” (Ibid). Under Taft-Hartley, Congress chose mediation, conciliation and boards of inquiry. “In some instances temporary injunctions were authorized to provide cooling-off periods. All this failing, unions were left free to strike after a secret vote by employees as to whether they wished to accept their employers’ final settlement offer.” (Ibid). But Taft Hartley Act action was politically dangerous for a President from a Democratic Party who would likely lose labor union support if he relied on Taft Hartley. That Act had been the culmination of Republican Party efforts to hobble the more aggressive and labor friendly provisions of the pre-WWII National Labor Relations Act. That effort was made possible by a media campaign heavy on the emphasis of the infiltration of labor union organizations by organized crime (and less on the collusion of businesses with the enemy powers during WWII, but that is another story, and one many of whose protagonists remained bitter about to their dying days).
For the formalist, all of these political calculations summed to zero. The President failed to invoke the only statutory avenues available to him. Therefore the only other basis to support the Executive Order had to be found in the Constitution and to the powers conferred on the President. Justice Black notes that no one claimed that the Constitution expressly permitted the President to issue the Executive Order.The contention is that presidential power should be implied from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article II which say that “The executive Power shall be vested in a President . . .”; that “he shall take Care that the Laws be faithfully executed”; and that he “shall be Commander in Chief of the Army and Navy of the United States.” (Steel Seizure Case Part II.)Justice Black rejects the contention that the President’s military powers extends to the issuance of the Executive Order with effect outside the zone of combat. In words that would echo in perhaps perverse ways in Hamdi,[23] discussed in our last class, Justice Black noted:Even though “theater of war”is an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation’s lawmakers, not for its military authorities. (Ibid).Justice Black rejected the argument that the power to issue the Executive order was inherent in the general executive power of the President. For Justice Black, the Executive Order functioned like a statute and not like the execution of one. The Congress, not the president, retained the power to make law. The President’s efforts to take that power onto himself in this context exceeded his authority.The power of Congress to adopt such public policies as those proclaimed by the order is beyond question. It can authorize the taking of private property for public use. It can make laws regulating the relationships between employers and employees, prescribing rules designed to settle labor disputes, and fixing wages and working conditions in certain fields of our economy. The Constitution does not subject this lawmaking power of Congress to presidential or military supervision or control. (Ibid).
He also rejected what in other circumstances other majorities of Supreme Court justices had found constitutionally compelling―congressional acquiescence. But that is the essence of formalism; such acquiescence is messy and functional in the sense that it represents an unwholesome deviation from the letter of the structure of the law. “It is said that other Presidents without congressional authority have taken possession of private business enterprises in order to settle labor disputes. But even if this be true, Congress has not thereby lost its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution * * * * * “ (Ibid.).
And thus, for Justice Black, the resolution of the case naturally followed: “The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand.” (Ibid).
Interestingly, though Justice Black’s opinion settled the matter, it has been the concurring and dissenting opinions that have been much more influential on the conceptualization of separation of powers in the aftermath of the decision.
Justice Frankfurter was sensitive both to the issues of separation of powers and checks and balances, which he believed this decision furthered to avoid concentrations of power. For him, there is a sense that the decision had political implications―the defense of separation of powers preserved the democratic character of the state as envisioned by the Founders. This was particularity important in the early 1950s, when the mortal political enemy of the United States was characterized as foundationally anti-democratic. “It is absurd to see a dictator in a representative product of the sturdy democratic traditions of the Mississippi Valley. The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.” (Ibid).
But as important, Justice Frankfurter also used the opinion to restate a vision of judicial engagement that left the court out of the political battles between President and Congress. “The Framers, however, did not make the judiciary the overseer of our government. They were familiar with the revisory functions entrusted to judges in a few of the States and refused to lodge such powers in this Court. Judicial power can be exercised only as to matters that were the traditional concern of the courts at Westminster, and only if they arise in ways that to the expert feel of lawyers constitute “Cases” or “Controversies.”“ (Ibid). To that end, Justice Frankfurter considered the history of legislation to the point at which the Executive Order was issued. “Congress has expressed its will to withhold this power from the President as though it had said so in so many words. The authoritatively expressed purpose of Congress to disallow such power to the President and to require him, when in his mind the occasion arose for such a seizure, to put the matter to Congress and ask for specific authority from it, could not be more decisive if it had been written into §§ 206-210 of the Labor Management Relations Act of 1947.” (Ibid).
But there is a bit of remorse. There is a price to be paid when efficiency is sacrificed to avoid tyranny.A scheme of government like ours no doubt at times feels the lack of power to act with complete, all-embracing, swiftly moving authority. No doubt a government with distributed authority, subject to be challenged in the courts of law, at least long enough to consider and adjudicate the challenge, labors under restrictions from which other governments are free. It has not been our tradition to envy such governments. In any event our government was designed to have such restrictions. The price was deemed not too high in view of the safeguards which these restrictions afford. (Ibid).In contrast to the opinions of Justices Black and Frankfurter, the dissenting opinions of the Chief Justice and Justice’s Reed and Mointon provide an excellent example of a functionalist approach[24] to interpretative of statutory and constitutional provisions. For them, the overriding issue was to preserve the union. To this end every structure of the Constitutional arrangement must be bent. The failure to do so would preserve a perfectly and elegantly structured by eventually defunct Republic to the benefit of none of its citizens. Here they draw a line beyond which efficiency concerns must trump the fear of tyranny―with echoes to the rationale of the ancient roman senatus consulta (a form of which we discussed when we reviewed the Institutes[25]).Foer them the power of eminent domain and that of the President’s military powers were sufficient to justify this action in aid of the war effort. (Ibid., dissent §§II, III).The broad executive power granted by Article II to an officer on duty 365 days a year cannot, it is said, be invoked to avert disaster. Instead, the President must confine himself to sending a message to Congress recommending action. Under this messenger-boy concept of the Office, the President cannot even act to preserve legislative programs from destruction so that Congress will have something left to act upon. There is no judicial finding that the executive action was unwarranted because there was in fact no basis for the President’s finding of the existence of an emergency for, under this view, the gravity of the emergency and the immediacy of the threatened disaster are considered irrelevant as a matter of law. (Ibid., dissent, § VI).But the opinion that has proven the most influential, and the one that the Supreme Court has relied on since for its analytical framework when considering interpretive issues relating to the structural elements of separation of powers in the constitution, is that created in the concurring opinion of Justice Jackson. His three part balancing test merges elements of formalist and functionalist components that permit some judicial interpretive flexibility within a fairly well defined forma framework provided by the formal structures of the Constitution itself.
First the functionalist chapeau[26] to the three part analytical framework:The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers.Then the three part functional-formal standard:1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. * * * *2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law. * * * *3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. 4 Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system. (Ibid. Jackson, J., concurring).Justice Jackson then applies this analytical framework tothe case. He eliminates the first category by admission of the parties. In what might for some be a more questionable analysis, Justice Jackson eliminates applicability of the second category on grounds similar to those used by Justice Frankfurter―a determination that Congress has not merely failed to acquiesce, it has made its opposition to the action represented by the Executive Order clear.It seems clearly eliminated from that class because Congress has not left seizure of private property an open field but has covered it by three statutory policies inconsistent with this seizure. In cases where the purpose is to supply needs of the Government itself, two courses are provided: one, seizure of a plant which fails to comply with obligatory orders placed by the Government; another, condemnation of facilities, including temporary use under the power of eminent domain. The third is applicable where it is the general economy of the country that is to be protected rather than exclusive governmental interests. None of these were invoked. In choosing a different and inconsistent way of his own, the President cannot claim that it is necessitated or invited by failure of Congress to legislate upon the occasions, grounds and methods for seizure of industrial properties. (Ibid).The questionable part, of course, is provided by the analysis of the dissenting justices. It may not be as clear cut that Congress refused to acquiesce here. The difficulty here, of course, is to attempt to draw a judgment from a number of actions that may or may not be related to produce something like a plausible set of intentions by a Congress that in make-up was not anywhere the same of those whose actions contributed to the interpretation of intent. It might as easily have been possible, as the dissenting justices suggested, that having noticed Congress of the seizure by Executive Order, the Congress could have acted to either affirm or reject the action through legislation or other assertion of power. The issue of interpreting intention from prior actions remains one of the more contentious actions of the Court, and sometimes contributes to its least convincing actions.
Having eliminated the first two the only justification available is in the third category. But this is one where Presidential power is at its weakest and the test is at its most severe, “where it can be supported only by any remainder of executive power after subtraction of such powers as Congress may have over the subject. * * * * “ (Ibid). Justice Jackson is not impressed with the government’s argument which he characterizes thus:That seems to be the logic of an argument tendered at our bar ― that the President having, on his own responsibility, sent American troops abroad derives from that act “affirmative power” to seize the means of producing a supply of steel for them. To quote, “Perhaps the most forceful illustration of the scope of Presidential power in this connection is the fact that American troops in Korea, whose safety and effectiveness are so directly involved here, were sent to the field by an exercise of the President’s constitutional powers.” Thus, it is said, he has invested himself with “war powers.” * * * * (Ibid).Justice Jackson then notes that if, indeed, the United States is at war, then it is the responsibility of Congress, and not the president, to support the military effort.I suppose no one would doubt that Congress can take over war supply as a Government enterprise. On the other hand, if Congress sees fit to rely on free private enterprise collectively bargaining with free labor for support and maintenance of our armed forces, can the Executive, because of lawful disagreements incidental to that process, seize the facility for operation upon Government-imposed terms? (Ibid).Where the President sought to take these powers to himself, then the tyranny dangers against which the Constitution provides protection ought to guide the result. Here there is an echo of Justice Frankfurter’s concerns, but in a more analytical framework. Thus Justice Jackson’s dismissive: “There are indications that the Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants.” (Ibid). From the perspective of the early 21st century, it is possible to suggest that the line has been moved a bit closer to Presidential discretion in matters of this kind, but with Congressional acquiescence (e.g., U.S.A. Patriot Act[27]). Likewise, Justice Jackson rejects resort to what he describes as resort to use of “nebulous, inherent powers never expressly granted but said to have accrued to the office from the customs and claims of preceding administrations. The plea is for a resulting power to deal with a crisis or an emergency according to the necessities of the case, the unarticulated assumption being that necessity knows no law.”(Ibid). These, Justice Jackson argues, are political arguments, not legal arguments, and better deployed elsewhere.
With a nod to functional issues of efficiency in times of crisis, Justice Jackson notes that perhaps a different result might have been appropriate in the event of an imminent invasion or preparation for total war―the situation marked by the period leading to the entry of the United States into the global military conflict upon the Japanese attack at Pearl Harbor in 1941. “The present situation is not comparable to that of an imminent invasion or threatened attack. We do not face the issue of what might be the President’s constitutional power to meet such catastrophic situations. Nor is it claimed that the current seizure is in the nature of a military command addressed by the President, as Commander-in-Chief, to a mobilized nation waging, or imminently threatened with, total war.” (Ibid). But the Korean War was not the Second World War, and the seizure of steel mills was not the same as the coordinated use of industry to aid a total war effort. In these circumstances separation of powers principles and the premise of protecting against tyranny trumps efficiency concerns in the conduct of a foreign military intervention―even at the cost of American lives and the possible protraction of hostilities.
On the afternoon of the announcement of the Supreme Court decision, the steel mills were returned to their owners and almost immediately thereafter the unions struck (1952 Steel Strike[28]). Truman, in his memoirs, continued to argue that the case was wrongly decided and cost service personnel their lives as the war effort was seriously affected. For an interesting discussion on the way in which the Supreme Court may have retreated from its interventionist role in the Steel Seizure case, see, Neal Devins and Louis Fisher, “The Steel Seizure Case: One of a Kind?,”[29]Constitutional Commentary 19:63-86 (2002).IV. ProblemYou have considered the development of a judicial structure for the legalization of the political division of authority between the branches of the federal government. You have, in the process, begun to consider the tools judges use to aid in analysis of constitutional provisions. These include normative principles derived from the constitution itself (these include anti-tyranny and efficiency principles), and interpretive principles grounded either in formalism or functionalism. Formalist principles are guided by the text of the instrument subject to interpretation and tend to focus on methodologies of infusing words with meanings (plain meaning, coherence in reading, ordinary meaning, meaning of words derived from their use in the statute, etc.). Functionalist principles are guided by the objectives of the provision being interpreted (intent of the drafters, effect of interpretive application balancing interests, etc.). This problem examines the legalization of the division of power between general and state government (federalism). Consider the following case:Bond v. U.S.No. 12–158. Argued November 5, 2013—Decided June 2, 2014Chief Justice Roberts delivered the opinion of the Court.The horrors of chemical warfare were vividly captured by John Singer Sargent in his 1919 painting Gassed. The nearly life-sized work depicts two lines of soldiers, blinded by mustard gas, clinging single file to orderlies guiding them to an improvised aid station. There they would receive little treatment and no relief; many suffered for weeks only to have the gas claim their lives. The soldiers were shown staggering through piles of comrades too seriously burned to even join the procession.The painting reflects the devastation that Sargent witnessed in the aftermath of the Second Battle of Arras during World War I. That battle and others like it led to an overwhelming consensus in the international commu-nity that toxic chemicals should never again be used as weapons against human beings. Today that objective is reflected in the international Convention on Chemical Weapons, which has been ratified or acceded to by 190 countries. The United States, pursuant to the Federal Government’s constitutionally enumerated power to make treaties, ratified the treaty in 1997. To fulfill the United States’ obligations under the Convention, Congress en-acted the Chemical Weapons Convention Implementation Act of 1998. The Act makes it a federal crime for a person to use or possess any chemical weapon, and it punishes violators with severe penalties. It is a statute that, like the Convention it implements, deals with crimes of deadly seriousness.The question presented by this case is whether the Implementation Act also reaches a purely local crime: an amateur attempt by a jilted wife to injure her husband’s lover, which ended up causing only a minor thumb burn readily treated by rinsing with water. Because our constitutional structure leaves local criminal activity primarily to the States, we have generally declined to read federal law as intruding on that responsibility, unless Congress has clearly indicated that the law should have such reach. The Chemical Weapons Convention Implementation Act contains no such clear indication, and we accordingly conclude that it does not cover the unremarkable local offense at issue here.IAIn 1997, the President of the United States, upon the advice and consent of the Senate, ratified the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction. S. Treaty Doc. No. 103–21, 1974 U. N. T. S. 317. The nations that ratified the Convention (State Parties) had bold aspirations for it: “general and complete disarmament under strict and effective international control, including the prohibition and elimination of all types of weapons of mass destruction.” Convention Preamble, ibid. This purpose traces its origin to World War I, when “[o]ver a million casualties, up to 100,000 of them fatal, are estimated to have been caused by chemicals . . . , a large part following the introduction of mustard gas in 1917.” Kenyon, Why We Need a Chemical Weapons Convention and an OPCW, in The Creation of the Organisation for the Prohibition of Chemical Weapons 1, 4 (I. Kenyon & D. Feakes eds. 2007) (Kenyon & Feakes). The atrocities of that war led the community of nations to adopt the 1925 Geneva Protocol, which prohibited the use of chemicals as a method of warfare. Id., at 5.Up to the 1990s, however, chemical weapons remained in use both in and out of wartime, with devastating consequences. Iraq’s use of nerve agents and mustard gas during its war with Iran in the 1980s contributed to international support for a renewed, more effective chemical weapons ban. Id., at 6, 10–11. In 1994 and 1995, long-held fears of the use of chemical weapons by terrorists were realized when Japanese extremists carried out two attacks using sarin gas. Id., at 6. The Convention was conceived as an effort to update the Geneva Protocol’s protections and to expand the prohibition on chemical weapons beyond state actors in wartime. Convention Preamble, 1974 U. N. T. S. 318 (the State Parties are “[d]etermined for the sake of all mankind, to exclude completely the possibility of the use of chemical weapons, . . . thereby complementing the obligations assumed under the Geneva Protocol of 1925”). The Convention aimed to achieve that objective by prohibiting the development, stockpiling, or use of chemical weapons by any State Party or person within a State Party’s jurisdiction. Arts. I, II, VII. It also established an elaborate reporting process requiring State Parties to destroy chemical weapons under their control and submit to inspection and monitoring by an international organization based in The Hague, Netherlands. Arts. VIII, IX.The Convention provides:“(1) Each State Party to this Convention undertakes never under any circumstances:“(a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone;“(b) To use chemical weapons;“(c) To engage in any military preparations to use chemical weapons;“(d) To assist, encourage or induce, in any way, any-one to engage in any activity prohibited to a State Party under this Convention.” Art. I, id., at 319.“Chemical Weapons” are defined in relevant part as “[t]oxic chemicals and their precursors, except where intended for purposes not prohibited under this Convention, as long as the types and quantities are consistent with such purposes.” Art. II(1)(a), ibid. “Toxic Chemical,” in turn, is defined as “Any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals. This includes all such chemicals, regardless of their origin or of their method of production, and regardless of whether they are produced in facilities, in munitions or elsewhere.” Art. II(2), id., at 320. “Purposes Not Prohibited Under this Convention” means “[i]ndustrial, agricultural, research, medical, pharmaceutical or other peaceful purposes,” Art. II(9)(a), id., at 322, and other specific purposes not at issue here, Arts. II(9)(b)–(d).Although the Convention is a binding international agreement, it is “not self-executing.” W. Krutzsch & R. Trapp, A Commentary on the Chemical Weapons Convention 109 (1994). That is, the Convention creates obligations only for State Parties and “does not by itself give rise to domestically enforceable federal law” absent “implementing legislation passed by Congress.” Medellín v. Texas, 552 U. S. 491, n. 2 (2008). It instead provides that “[e]ach State Party shall, in accordance with its constitutional processes, adopt the necessary measures to implement its obligations under this Convention.” Art. VII(1), 1974 U. N. T. S. 331. “In particular,” each State Party shall “[p]rohibit natural and legal persons anywhere . . . under its jurisdiction . . . from undertaking any activity prohibited to a State Party under this Convention, including enacting penal legislation with respect to such activity.” Art. VII (1)(a), id., at 331–332.Congress gave the Convention domestic effect in 1998 when it passed the Chemical Weapons Convention Implementation Act. See 112Stat. 2681–856. The Act closely tracks the text of the treaty: It forbids any person knowingly “to develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon.” 18 U. S. C. §229(a)(1). It defines “chemical weapon” in relevant part as “[a] toxic chemical and its precursors, except where intended for a purpose not prohibited under this chapter as long as the type and quantity is consistent with such a purpose.” §229F(1)(A). “Toxic chemical,” in turn, is defined in general as “any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals. The term includes all such chemicals, regardless of their origin or of their method of production, and regardless of whether they are produced in facilities, in munitions or elsewhere.” §229F(8)(A). Finally, “purposes not prohibited by this chapter” is defined as “[a]ny peaceful purpose related to an industrial, agricultural, research, medical, or pharmaceutical activity or other activity,” and other specific purposes. §229F(7). A person who violates section 229 may be subject to severe punishment: imprisonment “for any term of years,” or if a victim’s death results, the death penalty or imprisonment “for life.” §229A(a).BPetitioner Carol Anne Bond is a microbiologist from Lansdale, Pennsylvania. In 2006, Bond’s closest friend, Myrlinda Haynes, announced that she was pregnant. When Bond discovered that her husband was the child’s father, she sought revenge against Haynes. Bond stole a quantity of 10-chloro-10H-phenoxarsine (an arsenic-based compound) from her employer, a chemical manufacturer. She also ordered a vial of potassium dichromate (a chemical commonly used in printing photographs or cleaning laboratory equipment) on Amazon.com. Both chemicals are toxic to humans and, in high enough doses, potentially lethal. It is undisputed, however, that Bond did not intend to kill Haynes. She instead hoped that Haynes would touch the chemicals and develop an uncomfortable rash.Between November 2006 and June 2007, Bond went to Haynes’s home on at least 24 occasions and spread the chemicals on her car door, mailbox, and door knob. These attempted assaults were almost entirely unsuccessful. The chemicals that Bond used are easy to see, and Haynes was able to avoid them all but once. On that occasion, Haynes suffered a minor chemical burn on her thumb, which she treated by rinsing with water. Haynes repeatedly called the local police to report the suspicious substances, but they took no action. When Haynes found powder on her mailbox, she called the police again, who told her to call the post office. Haynes did so, and postal inspectors placed surveillance cameras around her home. The cameras caught Bond opening Haynes’s mailbox, stealing an envelope, and stuffing potassium dichromate inside the muffler of Haynes’s car.Federal prosecutors naturally charged Bond with two counts of mail theft, in violation of 18 U. S. C. §1708. More surprising, they also charged her with two countsof possessing and using a chemical weapon, in violationof section 229(a). Bond moved to dismiss the chemical weapon counts on the ground that section 229 exceeded Congress’s enumerated powers and invaded powers reserved to the States by the Tenth Amendment. The District Court denied Bond’s motion. She then entered a conditional guilty plea that reserved her right to appeal. The District Court sentenced Bond to six years in federal prison plus five years of supervised release, and ordered her to pay a $2,000 fine and $9,902.79 in restitution.Bond appealed, raising a Tenth Amendment challenge to her conviction. The Government contended that Bond lacked standing to bring such a challenge. The Court of Appeals for the Third Circuit agreed. We granted certiorari, the Government confessed error, and we reversed. We held that, in a proper case, an individual may “assert injury from governmental action taken in excess of the authority that federalism defines.” Bond v. United States, 564 U. S. ___, ___ (2011) (Bond I) (slip op., at 8). We “expresse[d] no view on the merits” of Bond’s constitutional challenge. Id., at ___ (slip op., at 14).On remand, Bond renewed her constitutional argument. She also argued that section 229 does not reach her conduct because the statute’s exception for the use of chemicals for “peaceful purposes” should be understood in contradistinction to the “warlike” activities that the Convention was primarily designed to prohibit. Bond argued that her conduct, though reprehensible, was not at all “warlike.” The Court of Appeals rejected this argument. 681 F. 3d 149 (CA3 2012). The court acknowledged that the Government’s reading of section 229 would render the statute “striking” in its “breadth” and turn every “kitchen cupboard and cleaning cabinet in America into a potential chemical weapons cache.” Id., at 154, n. 7. But the court nevertheless held that Bond’s use of “ ‘highly toxic chemicals with the intent of harming Haynes’ can hardly be characterized as ‘peaceful’ under that word’s commonly understood meaning.” Id., at 154 (citation omitted).The Third Circuit also rejected Bond’s constitutional challenge to her conviction, holding that section 229 was “necessary and proper to carry the Convention into effect.” Id., at 162. The Court of Appeals relied on this Court’s opinion in Missouri v. Holland, 252 U. S. 416 (1920) , which stated that “[i]f the treaty is valid there can be no dispute about the validity of the statute” that implements it “as a necessary and proper means to execute the powers of the Government,” id., at 432.We again granted certiorari, 568 U. S. ___ (2013).IIIn our federal system, the National Government possesses only limited powers; the States and the people retain the remainder. The States have broad authority to enact legislation for the public good—what we have often called a “police power.” United States v. Lopez, 514 U. S. 549, 567 (1995) . The Federal Government, by contrast, has no such authority and “can exercise only the powers granted to it,” McCulloch v. Maryland, 4 Wheat. 316, 405 (1819), including the power to make “all Laws which shall be necessary and proper for carrying into Execution” the enumerated powers, U. S. Const., Art. I, §8, cl. 18. For nearly two centuries it has been “clear” that, lacking a police power, “Congress cannot punish felonies generally.” Cohens v. Virginia, 6 Wheat. 264, 428 (1821). A criminal act committed wholly within a State “cannot be made an offence against the United States, unless it have some relation to the execution of a power of Congress, or to some matter within the jurisdiction of the United States.” United States v. Fox, 95 U. S. 670, 672 (1878) .The Government frequently defends federal criminal legislation on the ground that the legislation is authorized pursuant to Congress’s power to regulate interstate commerce. In this case, however, the Court of Appeals held that the Government had explicitly disavowed that argument before the District Court. 681 F. 3d, at 151, n. 1. As a result, in this Court the parties have devoted significant effort to arguing whether section 229, as applied to Bond’s offense, is a necessary and proper means of executing the National Government’s power to make treaties. U. S. Const., Art. II, §2, cl. 2. Bond argues that the lower court’s reading of Missouri v. Holland would remove all limits on federal authority, so long as the Federal Government ratifies a treaty first. She insists that to effectively afford the Government a police power whenever it implements a treaty would be contrary to the Framers’ careful decision to divide power between the States and the National Government as a means of preserving liberty. To the extent that Holland authorizes such usurpation of traditional state authority, Bond says, it must be either limited or overruled.The Government replies that this Court has never held that a statute implementing a valid treaty exceeds Congress’s enumerated powers. To do so here, the Government says, would contravene another deliberate choice of the Framers: to avoid placing subject matter limitations on the National Government’s power to make treaties. And it might also undermine confidence in the United States as an international treaty partner.Notwithstanding this debate, it is “a well-established principle governing the prudent exercise of this Court’s jurisdiction that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case.” Escambia County v. Mc-Millan, 466 U. S. 48, 51 (1984) (per curiam); see also Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring). Bond argues that section 229 does not cover her conduct. So we consider that argument first.IIISection 229 exists to implement the Convention, so we begin with that international agreement. As explained, the Convention’s drafters intended for it to be a comprehensive ban on chemical weapons. But even with its broadly worded definitions, we have doubts that a treaty about chemical weapons has anything to do with Bond’s conduct. The Convention, a product of years of worldwide study, analysis, and multinational negotiation, arose in response to war crimes and acts of terrorism. See Kenyon & Feakes 6. There is no reason to think the sovereign nations that ratified the Convention were interested in anything like Bond’s common law assault.Even if the treaty does reach that far, nothing prevents Congress from implementing the Convention in the same manner it legislates with respect to innumerable other matters—observing the Constitution’s division of responsibility between sovereigns and leaving the prosecution of purely local crimes to the States. The Convention, after all, is agnostic between enforcement at the state versus federal level: It provides that “[e]ach State Party shall, in accordance with its constitutional processes, adopt the necessary measures to implement its obligations under this Convention.” Art. VII(1), 1974 U. N. T. S. 331 (emphasis added); see also Tabassi, National Implementation: Article VII, in Kenyon & Feakes 205, 207 (“Since the creation of national law, the enforcement of it and the structure and administration of government are all sovereign acts reserved exclusively for [State Parties], it is not surprising that the Convention is so vague on the critical matter of national implementation.”).Fortunately, we have no need to interpret the scope of the Convention in this case. Bond was prosecuted under section 229, and the statute—unlike the Convention—must be read consistent with principles of federalism inherent in our constitutional structure.AIn the Government’s view, the conclusion that Bond “knowingly” “use[d]” a “chemical weapon” in violation of section 229(a) is simple: The chemicals that Bond placed on Haynes’s home and car are “toxic chemical[s]” as defined by the statute, and Bond’s attempt to assault Haynes was not a “peaceful purpose.” §§229F(1), (8), (7). The problem with this interpretation is that it would “dramatically intrude[ ] upon traditional state criminal jurisdiction,” and we avoid reading statutes to have such reach in the absence of a clear indication that they do. United States v. Bass, 404 U. S. 336, 350 (1971) .Part of a fair reading of statutory text is recognizing that “Congress legislates against the backdrop” of certain unexpressed presumptions. EEOC v. Arabian American Oil Co., 499 U. S. 244, 248 (1991) . As Justice Frankfurter put it in his famous essay on statutory interpretation, correctly reading a statute “demands awareness of certain presuppositions.” Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947). For example, we presume that a criminal statute derived from the common law carries with it the requirement of a culpable mental state—even if no such limitation appears in the text—unless it is clear that the Legislature intended to impose strict liability. United States v. United States Gypsum Co., 438 U. S. 422, 437 (1978) . To take another example, we presume, absent a clear statement from Congress, that federal statutes do not apply outside the United States. Morrison v. National Australia Bank Ltd., 561 U. S. 247, 255 (2010) . So even though section 229, read on its face, would cover a chemical weapons crime if committed by a U. S. citizen in Australia, we would not apply the statute to such conduct absent a plain statement from Congress.[30] The notion that some things “go without saying” applies to legislation just as it does to everyday life.Among the background principles of construction that our cases have recognized are those grounded in the relationship between the Federal Government and the States under our Constitution. It has long been settled, for example, that we presume federal statutes do not abrogate state sovereign immunity, Atascadero State Hospital v. Scanlon, 473 U. S. 234, 243 (1985) , impose obligations on the States pursuant to section 5 of the Fourteenth Amendment, Pennhurst State School and Hospital v. Halderman, 451 U. S. 1–17 (1981), or preempt state law, Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947) .Closely related to these is the well-established principle that “ ‘it is incumbent upon the federal courts to be certain of Congress’ intent before finding that federal law overrides’ ” the “usual constitutional balance of federal and state powers.” Gregory v. Ashcroft, 501 U. S. 452, 460 (1991) (quoting Atascadero, supra, at 243). To quote Frankfurter again, if the Federal Government would “ ‘radically readjust[ ] the balance of state and national authority, those charged with the duty of legislating [must be] reasonably explicit’ ” about it. BFP v. Resolution Trust Corporation, 511 U. S. 531, 544 (1994) (quoting Some Reflections, supra, at 539–540; second alteration in original). Or as explained by Justice Marshall, when legislation “affect[s] the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.” Bass, supra, at 349.We have applied this background principle when construing federal statutes that touched on several areas of traditional state responsibility. See Gregory, supra, at 460 (qualifications for state officers); BFP, supra, at 544 (titles to real estate); Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 174 (2001) (land and water use). Perhaps the clearest example of traditional state authority is the punishment of local criminal activity. United States v. Morrison, 529 U. S. 598, 618 (2000) . Thus, “we will not be quick to assume that Congress has meant to effect a significant change in the sensitive relation between federal and state criminal jurisdiction.” Bass, 404 U. S., at 349.In Bass, we interpreted a statute that prohibited any convicted felon from “ ‘receiv[ing], possess[ing], or transport[ing] in commerce or affecting commerce . . . any firearm.’ ” Id., at 337. The Government argued that the statute barred felons from possessing all firearms and that it was not necessary to demonstrate a connection to interstate commerce. We rejected that reading, which would “render[ ] traditionally local criminal conduct a matter for federal enforcement and would also involve a substantial extension of federal police resources.” Id., at 350. We instead read the statute more narrowly to require proof of a connection to interstate commerce in every case, thereby “preserv[ing] as an element of all the of-fenses a requirement suited to federal criminal jurisdiction alone.” Id., at 351.Similarly, in Jones v. United States, 529 U. S. 848, 850 (2000) , we confronted the question whether the federal arson statute, which prohibited burning “ ‘any . . . property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce,’ ” reached an owner-occupied private residence. Once again we rejected the Government’s “expansive interpretation,” under which “hardly a building in the land would fall outside the fed-eral statute’s domain.” Id., at 857. We instead held that the statute was “most sensibly read” more narrowly to reach only buildings used in “active employment for commercial purposes.” Id., at 855. We noted that “arson is a paradigmatic common-law state crime,” id., at 858, and that the Government’s proposed broad reading would “ ‘significantly change[ ] the federal-state balance,’ ” ibid. (quoting Bass, 404 U. S., at 349), “mak[ing] virtually every arson in the country a federal offense,” 529 U. S., at 859.These precedents make clear that it is appropriate to refer to basic principles of federalism embodied in the Constitution to resolve ambiguity in a federal statute. In this case, the ambiguity derives from the improbably broad reach of the key statutory definition given the term—“chemical weapon”—being defined; the deeply serious consequences of adopting such a boundless reading; and the lack of any apparent need to do so in light of the context from which the statute arose—a treaty about chemical warfare and terrorism. We conclude that, in this curious case, we can insist on a clear indication that Congress meant to reach purely local crimes, before interpreting the statute’s expansive language in a way that intrudes on the police power of the States. See Bass, supra, at 349.[31]BWe do not find any such clear indication in section 229. “Chemical weapon” is the key term that defines the statute’s reach, and it is defined extremely broadly. But that general definition does not constitute a clear statement that Congress meant the statute to reach local criminal conduct.In fact, a fair reading of section 229 suggests that it does not have as expansive a scope as might at first appear. To begin, as a matter of natural meaning, an educated user of English would not describe Bond’s crime as involving a “chemical weapon.” Saying that a person “used a chemical weapon” conveys a very different idea than saying the person “used a chemical in a way that caused some harm.” The natural meaning of “chemical weapon” takes account of both the particular chemicals that the defendant used and the circumstances in which she used them.When used in the manner here, the chemicals in this case are not of the sort that an ordinary person would associate with instruments of chemical warfare. The substances that Bond used bear little resemblance to the deadly toxins that are “of particular danger to the objectives of the Convention.” Why We Need a Chemical Weapons Convention and an OPCW, in Kenyon & Feakes 17 (describing the Convention’s Annex on Chemicals, a nonexhaustive list of covered substances that are subject to special regulation). More to the point, the use of something as a “weapon” typically connotes “[a]n instrument of offensive or defensive combat,” Webster’s Third New International Dictionary 2589 (2002), or “[a]n instrument of attack or defense in combat, as a gun, missile, or sword,” American Heritage Dictionary 2022 (3d ed. 1992). But no speaker in natural parlance would describe Bond’s feud-driven act of spreading irritating chemicals on Haynes’s door knob and mailbox as “combat.” Nor do the other circumstances of Bond’s offense—an act of revenge born of romantic jealousy, meant to cause discomfort, that produced nothing more than a minor thumb burn—suggest that a chemical weapon was deployed in Norristown, Pennsylvania. Potassium dichromate and 10-chloro-10H-phenoxarsine might be chemical weapons if used, say, to poison a city’s water supply. But Bond’s crime is worlds apart from such hypotheticals, and covering it would give the statute a reach exceeding the ordinary meaning of the words Congress wrote.In settling on a fair reading of a statute, it is not un-usual to consider the ordinary meaning of a defined term, particularly when there is dissonance between that ordinary meaning and the reach of the definition. In Johnson v. United States, 559 U. S. 133, 136 (2010) , for example, we considered the statutory term “ ‘violent felony,’ ” which the Armed Career Criminal Act defined in relevant part as an offense that “ ‘has as an element the use . . . of physical force against the person of another.’ ” Although “physical force against . . . another” might have meant any force, however slight, we thought it “clear that in the context of a statutory definition of ‘violent felony,’ the phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person.” Id., at 140. The ordinary meaning of “chemical weapon” plays a similar limiting role here.The Government would have us brush aside the ordinary meaning and adopt a reading of section 229 that would sweep in everything from the detergent under the kitchen sink to the stain remover in the laundry room. Yet no one would ordinarily describe those substances as “chemical weapons.” The Government responds that because Bond used “specialized, highly toxic” (though legal) chemicals, “this case presents no occasion to address whether Congress intended [section 229] to apply to common household substances.” Brief for United States 13, n. 3. That the statute would apply so broadly, however, is the inescapable conclusion of the Government’s position: Any parent would be guilty of a serious federal offense—possession of a chemical weapon—when, exasperated by the children’s repeated failure to clean the goldfish tank, he considers poisoning the fish with a few drops of vinegar. We are reluctant to ignore the ordinary meaning of “chemical weapon” when doing so would transform a statute passed to implement the international Convention on Chemical Weapons into one that also makes it a federal offense to poison goldfish. That would not be a “realistic assessment[ ] of congressional intent.” Post, at 6 (Scalia, J., concurring in judgment).In light of all of this, it is fully appropriate to apply the background assumption that Congress normally preserves “the constitutional balance between the National Government and the States.” Bond I, 564 U. S., at ___ (slip op., at 10). That assumption is grounded in the very structure of the Constitution. And as we explained when this case was first before us, maintaining that constitutional balance is not merely an end unto itself. Rather, “[b]y denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.” Ibid.The Government’s reading of section 229 would “ ‘alter sensitive federal-state relationships,’ ” convert an astonishing amount of “traditionally local criminal conduct” into “a matter for federal enforcement,” and “involve a substantial extension of federal police resources.” Bass, 404 U. S., at 349–350. It would transform the statute from one whose core concerns are acts of war, assassination, and terrorism into a massive federal anti-poisoning regime that reaches the simplest of assaults. As the Government reads section 229, “hardly” a poisoning “in the land would fall outside the federal statute’s domain.” Jones, 529 U. S., at 857. Of course Bond’s conduct is serious and unacceptable—and against the laws of Pennsylvania. But the background principle that Congress does not normally intrude upon the police power of the States is critically important. In light of that principle, we are reluctant to conclude that Congress meant to punish Bond’s crime with a federal prosecution for a chemical weapons attack.In fact, with the exception of this unusual case, the Federal Government itself has not looked to section 229 to reach purely local crimes. The Government has identified only a handful of prosecutions that have been brought under this section. Brief in Opposition 27, n. 5. Most of those involved either terrorist plots or the possession of extremely dangerous substances with the potential to cause severe harm to many people. See United States v. Ghane, 673 F. 3d 771 (CA8 2012) (defendant possessed enough potassium cyanide to kill 450 people); United States v. Crocker, 260 Fed. Appx. 794 (CA6 2008) (defendant attempted to acquire VX nerve gas and chlorine gas as part of a plot to attack a federal courthouse); United States v. Krar, 134 Fed. Appx. 662 (CA5 2005) (per curiam) (defendant possessed sodium cyanide); United States v. Fries, 2012 WL 689157 (D Ariz., Feb. 28, 2012) (defendant set off a homemade chlorine bomb in the victim’s driveway, requiring evacuation of a residential neighborhood). The Federal Government undoubtedly has a substantial interest in enforcing criminal laws against assassination, terrorism, and acts with the potential to cause mass suffering. Those crimes have not traditionally been left predominantly to the States, and nothing we have said here will disrupt the Government’s authority to prosecute such offenses.It is also clear that the laws of the Commonwealth of Pennsylvania (and every other State) are sufficient to prosecute Bond. Pennsylvania has several statutes that would likely cover her assault. See 18 Pa. Cons. Stat. §§2701 (2012) (simple assault), 2705 (reckless endangerment), 2709 (harassment). 3 And state authorities regularly enforce these laws in poisoning cases. See, e.g., Gamiz, Family Survives Poisoned Burritos, Allentown, Pa., Morning Call, May 18, 2013 (defendant charged with assault, reckless endangerment, and harassment for feeding burritos poisoned with prescription medication to her husband and daughter); Cops: Man Was Poisoned Over 3 Years, Harrisburg, Pa., Patriot News, Aug. 12, 2012, p. A11 (defendant charged with assault and reckless endangerment for poisoning a man with eye drops over three years so that “he would pay more attention to her”).The Government objects that Pennsylvania authorities charged Bond with only a minor offense based on her “harassing telephone calls and letters,” Bond I, 564 U. S., at ___ (slip op., at 2), and declined to prosecute her for assault. But we have traditionally viewed the exercise of state officials’ prosecutorial discretion as a valuable feature of our constitutional system. See Bordenkircher v. Hayes, 434 U. S. 357, 364 (1978) . And nothing in the Convention shows a clear intent to abrogate that feature. Prosecutorial discretion involves carefully weighing the benefits of a prosecution against the evidence needed to convict, the resources of the public fisc, and the public policy of the State. Here, in its zeal to prosecute Bond, the Federal Government has “displaced” the “public policy of the Commonwealth of Pennsylvania, enacted in its capacity as sovereign,” that Bond does not belong in prison for a chemical weapons offense. Bond I, supra, at ___ (slip op., at 12); see also Jones, supra, at 859 (Stevens, J., concurring) (federal prosecution of a traditionally local crime “illustrates how a criminal law like this may effectively displace a policy choice made by the State”).As we have explained, “Congress has traditionally been reluctant to define as a federal crime conduct readily denounced as criminal by the States.” Bass, 404 U. S., at 349. There is no clear indication of a contrary approach here. Section 229 implements the Convention, but Bond’s crime could hardly be more unlike the uses of mustard gas on the Western Front or nerve agents in the Iran-Iraq war that form the core concerns of that treaty. See Kenyon & Feakes 6. There are no life-sized paintings of Bond’s rival washing her thumb. And there are no apparent interests of the United States Congress or the community of nations in seeing Bond end up in federal prison, rather than dealt with (like virtually all other criminals in Pennsylvania) by the State. The Solicitor General acknowledged as much at oral argument. See Tr. of Oral Arg. 47 (“I don’t think anybody would say [that] whether or not Ms. Bond is prosecuted would give rise to an international incident”).This case is unusual, and our analysis is appropriately limited. Our disagreement with our colleagues reduces to whether section 229 is “utterly clear.” Post, at 5 (Scalia, J., concurring in judgment). We think it is not, given that the definition of “chemical weapon” in a particular case can reach beyond any normal notion of such a weapon, that the context from which the statute arose demonstrates a much more limited prohibition was intended, and that the most sweeping reading of the statute would fundamentally upset the Constitution’s balance between national and local power. This exceptional convergence of factors gives us serious reason to doubt the Government’s expansive reading of section 229, and calls for us to interpret the statute more narrowly.In sum, the global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon. There is no reason to suppose that Congress—in implementing the Convention on Chemical Weapons—thought otherwise.* * *The Convention provides for implementation by each ratifying nation “in accordance with its constitutional processes.” Art. VII(1), 1974 U. N. T. S. 331. As James Madison explained, the constitutional process in our “compound republic” keeps power “divided between two distinct governments.” The Federalist No. 51, p. 323 (C. Rossiter ed. 1961). If section 229 reached Bond’s conduct, it would mark a dramatic departure from that constitutional structure and a serious reallocation of criminal law enforcement authority between the Federal Government and the States. Absent a clear statement of that purpose, we will not presume Congress to have authorized such a stark intrusion into traditional state authority.The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered.__________Problem: Be prepared to answer the following questions about the case:1. Where does the federal Constitution provide a definition of federalism? Where does the Court derive principle for reading federalism limits onto Congressional Power to legislate and the executive power to enter into international obligations.2. Do you think a decision that Bond was found guilty under section 229 of the Act would be plausible? How would you make that argument? Would it be plausible under a plain text analysis/interpretation? Did the Supreme Court primarily utilize plain text analysis/interpretation techniques? If so, how? Does plain text analysis/interpretation serve the desired outcome of the Supreme Court? If not, why? Are other forms of construction and interpretation used? If so, why?3. If the court did not use a textual analysis, what interpretive principles did it use? How do you compare what way the Court used statutory analysis in Holy Trinity with the analysis of the majority in this case?4. Why is a broad application and interpretation of Section 229 of the Act inconceivable for the Court even if every chemical, such as vinegar, could be interpreted, according to the Act, as a chemical weapon? – again is there something different about chemicals? When INTENTIONALLY using vinegar to harm/destroy/kill another living thing, even a goldfish as the example the Court used, do you agree that to classify this as a use of a chemical weapon is inconceivable?5. Consider Belmont, studied above. Would the court have reached the same result if Section 229 had been part of a self executing executive agreement in which the parties specifically indicated that chemical weapons was to be broadly interpreted?
[1] http://www.archives.gov/exhibits/charters/constitution_transcript.html[2] http://www.law.cornell.edu/supremecourt/text/343/579[3]This Board was established under Executive Order 10233, 16 Fed. Reg. 3503.[4]The Selective Service Act of 1948, 62 Stat. 604, 625-627, 50 U. S. C. App. (Supp. IV) § 468; the Defense Production Act of 1950, Tit. II, 64 Stat. 798, as amended, 65 Stat. 132.[5]93 Cong. Rec. 3637-3645.[6]93 Cong. Rec. 3835-3836.[7]Labor Management Relations Act, 1947, 61 Stat. 136, 152-156, 29 U. S. C. (Supp. IV) §§ 141, 171-180.[8]http://www.loc.gov/rr/program/bib/ourdocs/articles.html[9]http://www.bundesrat.de/nn_11004/EN/funktionen-en/inhalte/2-Vorteile-Nachteile-en.html[10]http://en.wikipedia.org/wiki/American_Civil_War[11]http://en.wikipedia.org/wiki/Great_Depression[12]http://www.jfklibrary.org/JFK/JFK-in-History/Civil-Rights-Movement.aspx[13]http://www.senate.gov/[14] http://www.house.gov/[15]http://thomas.loc.gov/home/histdox/fed_01.html[16] http://thomas.loc.gov/home/histdox/fed_47.html[17] http://www.law.uchicago.edu/files/file/622-eap-balance.pdf[18] http://www.law.cornell.edu/supremecourt/text/343/579[19] http://en.wikipedia.org/wiki/Korean_War[20] http://archive.org/stream/yearsoftrialandh000234mbp#page/n5/mode/2up[21] http://en.wikipedia.org/wiki/Legal_formalism[22] http://en.wikipedia.org/wiki/Satrap[23] http://www.law.cornell.edu/supct/html/03-6696.ZS.html[24] http://lsolum.typepad.com/legaltheory/2007/06/legal_theory_le_1.html[25] http://www.gutenberg.org/ebooks/5983?msg=welcome_stranger[26]http://unterm.un.org/dgaacs/unterm.nsf/8fa942046ff7601c85256983007ca4d8/99954c21bccf56e185257156006f0e6b?OpenDocument[27] http://www.gpo.gov/fdsys/pkg/PLAW-107publ56/pdf/PLAW-107publ56.pdf[28] http://en.wikipedia.org/wiki/1952_steel_strike[29] http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1379&context=facpubs[30] Congress has in fact included just such a plain statement in section 229(c)(2): “Conduct prohibited by [section 229(a)] is within the jurisdiction of the United States if the prohibited conduct . . . takes place outside of the United States and is committed by a national of the United States.”
[31] Justice Scalia contends that the relevance of Bass and Jones to this case is “entirely made up,” post, at 3 (opinion concurring in judgment), but not because he disagrees with interpreting statutes in light of principles of federalism. Rather, he says that Bass was a case where the statute was unclear. We agree; we simply think the statute in this case is also subject to construction, for the reasons given. As for Jones, Justice Scalia argues that the discussion of federalism in that case was beside the point. Post, at 4. We do not read Jones that way; the Court adopted the “most sensibl[e] read[ing]” of the statute, 529 U. S., at 855, which suggests that other sensible readings were possible. In arriving at its fair reading of the statute, the Court considered the dramatic extent to which the Government’s broader interpretation would have expanded “the federal statute’s domain.” Id., at 857. We do the same here.
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