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Catholic Univ

ersity Law Review Catholic Univ ersity Law Review V olume 51 Issue 1 Fall 2001 Ar ticle 8 2001 A T ruism That Isn't True? The Tenth Amendment and Executive A T ruism That Isn't True? The Tenth Amendment and Executive W ar Power W ar Power D . A. Jeremy Telman F ollow this and additional works at: https:/ /scholarship.law.edu/lawreview Recommended Citation Recommended Citation D . A. Jeremy Telman, A Truism That Isn't True? The Tenth Amendment and Executive War Power, 51 Cath.

U. L. Re

v. 135 (2002). A vailable at: https:/ /scholarship.law.edu/lawreview/vol51/iss1/8 This Ar

ticle is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic Univ

ersity Law Review by an authorized editor of CUA Law Scholarship Repository. For mor e information, please contact edinger@law .edu.

A TRUISM THAT ISN'T TRUE? THE TENTH

AMENDMENT AND EXECUTIVE WAR POWER

D. A. Jeremy Telman'

[T]he Reigns of good Princes have been always most dangerous to the Liberties of their People. For when their Successors, managing the Government with different Thoughts, would draw the Actions of those good Rulers into Precedent, and make them the Standard of their Prerogative, as if what had been done only for the good of the People was a right in them to do, for the harm of the People, if they so pleased; it has often occasioned Contest, and sometimes publick Disorders, before the People could recover their original Right, and get that to be declared not to be

Prerogative, which truly was never so.

-John Locke, Second Treatise on Government'

I. INTRODUCTION

The Tenth Amendment to the United States Constitution provides that all powers not delegated to the government of the United States are reserved to the several states or to the people! The sacred cow of federalism, this amendment has played a limited role in the constitutional history of the United States. It is invoked whenever congressional legislative powers threaten the independent law making power of the several states. In that context, however, the Tenth Amendment does not tell us very much. After all, if powers are not delegated to the federal government, where else would they reside but in the states? Accordingly, * Associate, Sidley, Austin, Brown & Wood, New York, New York. B.A. 1985, Columbia University; Ph.D., 1993, Cornell University; J.D., 1999, New York University School of Law. Portions of this Article draw on research that I conducted while a Junior Fellow with the Center for International Studies at the New York University School of Law. That research was directed towards addressing the difficulties involved in reconciling the United States' participation in collective security regimes with the constitutional allocation of war powers. I am grateful to Christopher Eisgruber, Louis Fisher, Thomas Franck, David Golove, David Malone, Matthew Morris, Georg Nolte, Jay Parker, and John Yoo for their comments on earlier versions of this Article.

1. John Locke, Second Treatise § 166, in JOHN LOCKE, TwO TREATISES OF

GOVERNMENT 396 (Peter Laslett ed., 1967).

2. U.S. CONST. amend. X.

Catholic University Law Review

the Supreme Court has criticized the Amendment as a truism.' However, the consequences of this truism are not as simple as they first appear. When one reads the text of the Tenth Amendment it is difficult to imagine that anyone could argue that it applies only to Congress' power and not to all branches of the federal government. Nonetheless, the doctrine of inherent executive authority, a theoretical relic from the constitutional monarchies which supplied some of the raw materials for the United States' system of governance, 4 is enjoying a renaissance in debates over the allocation of war powers. According to the theory of inherent executive authority, certain powers are unique to the sovereign. Consequently, those powers reside in the federal Executive and require no constitutional delegation. This theory implies that the doctrine of limited government, which finds its clearest constitutional expression in the Tenth Amendment, applies only to the Congress. By attempting to provide an extra-constitutional source for executive power, advocates of the theory of inherent executive power transform the Tenth Amendment into a truism that is not true. For them, a power that is not delegated to any branch of the federal government is not reserved to the states or the people if it is part of the inherent power of the Executive. This argument ought to scandalize devotees of the Tenth Amendment. More scandalous still, in the context of war powers debates, advocates of inherent executive authority lay claim for the Executive, powers expressly delegated to Congress. Because the Constitution allocates limited war powers to the President, debates over the allocation of war powers are often said to take place in a "zone of twilight" where the Executive and the Legislature have concurrent power or where the allocation of powers between them is left unclear in the Constitution.' But the Constitution expressly delegates to Congress numerous war

3. United States v. Darby, 312 U.S. 100, 124 (1941). The Supreme Court stated that:

The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers. Id.; see also John R. Vile, Truism, Tautology or Vital Principle? The Tenth Amendment Since United States v. Darby, 27 CUMB. L. REV. 445 (1996-1997) (exploring the fate of the Tenth Amendment in Supreme Court decisions since 1941).

4. See the discussion of the theory of inherent executive authority infra

accompanying notes 215-36.

5. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J.,

concurring). [Vol. 51:135

2001] The Tenth Amendment and the Executive War Power 137

powers, and the Tenth Amendment prevents the re-allocation of those powers back to the Executive based on some anterior theory of inherent executive power. The Tenth Amendment is a truism with respect to federalist doctrine, as it does nothing to alter the distribution of powers between the federal government and the states. This Article does not propose that we ought to consider altering the distribution of war powers between the federal government and the states. Instead, this Article explores the ramifications of the Tenth Amendment, viewed as a general statement of the principle of limited government, for the allocation of war powers between the two political branches of the federal government. Specifically, this Article argues that the theory of inherent executive powers, on which arguments for unilateral, non-defensive executive war powers rely, cannot be reconciled with the theory of limited government embodied in the Tenth Amendment; therefore, unilateral, non-defensive executive war powers are not permitted under the United States Constitution. Part I of this Article reviews the history behind the adoption of the Tenth Amendment and discusses its aims. The Tenthquotesdbs_dbs3.pdfusesText_6