Chapter XLVI: Section 3: He shall from time to time give to the Congress (1)

Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and * * *

Legislative Role of the President

The above clause, which imposes a duty rather than confers a power, is the formal basis of the President's legislative leadership, which has attained great proportions since 1900. This development, however, represents the play of political and social forces rather than any pronounced change in constitutional interpretation. Especially is it the result of the rise of parties and the accompanying recognition of the President as party leader, of the appearance of the National Nominating Convention and the Party Platform, and of the introduction of the Spoils System, an ever present help to Presidents in times of troubled relations with Congress.[329] It is true that certain pre-Civil War Presidents, mostly of Whig extraction, professed to entertain nice scruples on the score of "usurping" legislative powers;[330] but still earlier ones, Washington, Jefferson, and Jackson among them, took a very different line, albeit less boldly and persistently than their later imitators.[331] Today there is no subject on which the President may not appropriately communicate to Congress, in as precise terms as he chooses, his conception of its duty. Conversely, the President is not obliged by this clause to impart information which, in his judgment, should in the public interest be withheld.[332] The President has frequently summoned both Houses into "extra" or "special sessions" for legislative purposes, and the Senate alone for the consideration of nominations and treaties. His power to adjourn the Houses has never been exercised.

The Right of Reception

SCOPE OF THE POWER

"Ambassadors and other public ministers" embraces not only "all possible diplomatic agents which any foreign power may accredit to the United States"[333] but also, as a practical construction of the Constitution, all foreign consular agents, who therefore may not exercise their functions in the United States without an exequatur from the President.[334] The power to "receive" ambassadors, etc., includes, moreover, the right to refuse to receive them, to request their recall, to dismiss them, and to determine their eligibility under our laws.[335] Furthermore, this power makes the President the sole mouthpiece of the nation in its dealings with other nations.

A PRESIDENTIAL MONOPOLY

Wrote Jefferson in 1790: "The transaction of business with foreign nations is Executive altogether. It belongs, then, to the head of that department, except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly."[336] So when Citizen Genet, envoy to the United States from the first French Republic, sought an exequatur for a consul whose commission was addressed to the Congress of the United States, Jefferson informed him that "as the President was the only channel of communication between the United States and foreign nations, it was from him alone 'that foreign nations or their agents are to learn what is or has been the will of the nation;' that whatever he communicated as such, they had a right and were bound to consider 'as the expression of the nation;' and that no foreign agent could be 'allowed to question it,' or 'to interpose between him and any other branch of government, under the pretext of either's transgressing their functions.' Mr. Jefferson therefore declined to enter into any discussion of the question as to whether it belonged to the President under the Constitution to admit or exclude foreign agents. 'I inform you of the fact,' he said, 'by authority from the President.' Mr. Jefferson therefore returned the consul's commission and declared that the President would issue no exequatur to a consul except upon a commission correctly addressed."[337]

"THE LOGAN ACT"

When in 1798 a Philadelphia Quaker named Logan went to Paris on his own to undertake a negotiation with the French Government with a view to averting war between France and the United States his enterprise stimulated Congress to pass "An Act to Prevent Usurpation of Executive Functions,"[338] which, "more honored in the breach than the observance," still survives on the statute books.[339] The year following John Marshall, then a Member of the House of Representatives, defended President John Adams for delivering a fugitive from justice to Great Britain under the 27th article of the Jay Treaty, instead of leaving the business to the courts. He said: "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign nation can only be made on him. He possesses the whole Executive power. He holds and directs the force of the nation. Of consequence, any act to be performed by the force of the nation is to be performed through him."[340] Ninety-nine years later a Senate Foreign Relations Committee took occasion to reiterate Marshall's doctrine with elaboration.[341]

A FORMAL OR A FORMATIVE POWER?

In his attack, instigated by Jefferson, upon Washington's Proclamation of Neutrality in 1793, at the outbreak of war between France and Great Britain, Madison advanced the argument that all large questions of foreign policy fell within the ambit of Congress, by virtue of its power "to declare war," and in support of this proposition he disparaged the Presidential function of reception, in the following words: "I shall not undertake to examine, what would be the precise extent and effect of this function in various cases which fancy may suggest, or which time may produce. It will be more proper to observe, in general, and every candid reader will second the observation, that little, if anything, more was intended by the clause, than to provide for a particular mode of communication, _almost_ grown into a right among modern nations; by pointing out the department of the government, most proper for the ceremony of admitting public ministers, of examining their credentials, and of authenticating their title to the privileges annexed to their character by the law of nations. This being the apparent design of the constitution, it would be highly improper to magnify the function into an important prerogative, even when no rights of other departments could be affected by it."[342]

THE PRESIDENT'S DIPLOMATIC ROLE

Hamilton, although he had expressed substantially the same view in The Federalist regarding the power of reception,[343] adopted a very different conception of it in defense of Washington's proclamation. Writing over the pseudonym "Pacificus," he said: "The right of the executive to receive ambassadors and other public ministers, may serve to illustrate the relative duties of the executive and legislative departments. This right includes that of judging, in the case of a revolution of government in a foreign country, whether the new rulers are competent organs of the national will, and ought to be recognized, or not; which, where a treaty antecedently exists between the United States and such nation, involves the power of continuing or suspending its operation. For until the new government is _acknowledged_, the treaties between the nations, so far at least as regards _public_ rights, are of course suspended. This power of determining virtually upon the operation of national treaties, as a consequence of the power to receive public ministers, is an important instance of the right of the executive, to decide upon the obligations of the country with regard to foreign nations. To apply it to the case of France, if there had been a treaty of alliance, offensive and defensive, between the United States and that country, the unqualified acknowledgment of the new government would have put the United States in a condition to become an associate in the war with France, and would have laid the legislature under an obligation, if required, and there was otherwise no valid excuse, of exercising its power of declaring war. This serves as an example of the right of the executive, in certain cases, to determine the condition of the nation, though it may, in its consequences, affect the exercise of the power of the legislature to declare war. Nevertheless, the executive cannot thereby control the exercise of that power. The legislature is still free to perform its duties, according to its own sense of them; though the executive, in the exercise of its constitutional powers, may establish an antecedent state of things, which ought to weigh in the legislative decision. The division of the executive power in the Constitution, creates a _concurrent_ authority in the cases to which it relates."[344]

JEFFERSON'S REAL POSITION

Nor did Jefferson himself officially support Madison's point of view, as the following extract from his "minutes of a Conversation," which took place July 10, 1793, between himself and Citizen Genet, show: "He asked if they [Congress] were not the sovereign. I told him no, they were sovereign in making laws only, the executive was sovereign in executing them, and the judiciary in construing them where they related to their department. 'But,' said he, 'at least, Congress are bound to see that the treaties are observed.' I told him no; there were very few cases indeed arising out of treaties, which they could take notice of; that the President is to see that treaties are observed. 'If he decides against the treaty, to whom is a nation to appeal?' I told him the Constitution had made the President the last appeal. He made me a bow, and said, that indeed he would not make me his compliments on such a Constitution, expressed the utmost astonishment at it, and seemed never before to have had such an idea."[345]

THE POWER OF RECOGNITION

In his endeavor in 1793 to minimize the importance of the President's power of reception Madison denied that it involved cognizance of the question, whether those exercising the government of the accrediting State have the right along with the possession. He said: "This belongs to the nation, and to the nation alone, on whom the government operates. * * * It is evident, therefore, that if the executive has a right to reject a public minister, it must be founded on some other consideration than a change in the government, or the newness of the government; and consequently a right to refuse to acknowledge a new government cannot be implied by the right to refuse a public minister. It is not denied that there may be cases in which a respect to the general principles of liberty, the essential rights of the people, or the overruling sentiments of humanity, might require a government, whether new or old, to be treated as an illegitimate despotism. Such are in fact discussed and admitted by the most approved authorities. But they are great and extraordinary cases, by no means submitted to so limited an organ of the national will as the executive of the United States; and certainly not to be brought by any torture of words, within the right to receive ambassadors."[346]

Hamilton, with the case of Genet before him, had taken the contrary position, which history has ratified. In consequence of his power to receive and dispatch diplomatic agents, but more especially the former, the President possesses the power to recognize new States, communities claiming the status of belligerency, and changes of government in established states; also, by the same token, the power to decline recognition, and thereby decline diplomatic relations with such new States or governments. The affirmative precedents down to 1906 are succinctly summarized by John Bassett Moore in his famous Digest, as follows: "In the preceding review of the recognition, respectively, of the new states, new governments, and belligerency, there has been made in each case a precise statement of facts, showing how and by whom the recognition was accorded. In every case, as it appears, of a new government and of belligerency, the question of recognition was determined solely by the Executive. In the case of the Spanish-American republics, of Texas, of Hayti, and of Liberia, the President, before recognizing the new state, invoked the judgment and cooperation of Congress; and in each of these cases provision was made for the appointment of a minister, which, when made in due form, constitutes, as has been seen, according to the rules of international law, a formal recognition. In numerous other cases, the recognition was given by the Executive solely on his own responsibility."[347]

The Case of Cuba

The question of Congress's right also to recognize new states was prominently raised in connection with Cuba's final and successful struggle for independence. Beset by numerous legislative proposals of a more or less mandatory character, urging recognition upon the President, the Senate Foreign Relations Committee, in 1897, made an elaborate investigation of the whole subject and came to the following conclusions as to this power: "The 'recognition' of independence or belligerency of a foreign power, technically speaking, is distinctly a diplomatic matter. It is properly evidenced either by sending a public minister to the Government thus recognized, or by receiving a public minister therefrom. The latter is the usual and proper course. Diplomatic relations with a new power are properly, and customarily inaugurated at the request of that power, expressed through an envoy sent for the purpose. The reception of this envoy, as pointed out, is the act of the President alone. The next step, that of sending a public minister to the nation thus recognized, is primarily the act of the President. The Senate can take no part in it at all, until the President has sent in a nomination. Then it acts in its executive capacity, and, customarily, in 'executive session.' The legislative branch of the Government can exercise no influence over this step except, very indirectly, by withholding appropriations. * * * Nor can the legislative branch of the Government hold any communications with foreign nations. The executive branch is the sole mouthpiece of the nation in communication with foreign sovereignties. Foreign nations communicate only through their respective executive departments. Resolutions of their legislative departments upon diplomatic matters have no status in international law. In the department of international law, therefore, properly speaking, a Congressional recognition of belligerency or independence would be a nullity. * * * Congress can help the Cuban insurgents by legislation in many ways, but it cannot help them legitimately by mere declarations, or by attempts to engage in diplomatic negotiations, if our interpretation of the Constitution is correct. That it is correct * * * [is] shown by the opinions of jurists and statesmen of the past."[348] Congress was able ultimately to bundle a clause recognizing the independence of Cuba, as distinguished from its government, into the declaration of war of April 11, 1898 against Spain. For the most part, the sponsors of the clause defended it by the following line of reasoning. Diplomacy, they said, was now at an end and the President himself had appealed to Congress to provide a solution for the Cuban situation. In response Congress was about to exercise its constitutional power of declaring war, and it has consequently the right to state the purpose of the war which it was about to declare.[349] The recognition of the Union of Soviet Socialist Republics in 1933 was an exclusively Presidential act.

THE POWER OF NONRECOGNITION

The potentialities of nonrecognition were conspicuously illustrated by President Woodrow Wilson when he refused, early in 1913, to recognize Provisional President Huerta as the _de facto_ government of Mexico, thereby contributing materially to Huerta's downfall the year following. At the same time Wilson announced a general policy of nonrecognition in the case of any government founded on acts of violence; and while he observed this rule with considerable discretion, he consistently refused to recognize the Union of Soviet Socialist Republics, and his successors prior to President Franklin D. Roosevelt did the same. The refusal of the Hoover Administration to recognize the independence of the Japanese puppet state of Manchukuo early in 1932 was based on kindred grounds. Nonrecognition of the Chinese Communist government by the Truman administration has proved to be a decisive element of the current (1952) foreign policy of the United States.

PRESIDENT AND CONGRESS

The relations of President and Congress in the diplomatic field have, first and, last, presented a varied picture of alternate cooperation and tension,[350] from which emerge two outstanding facts: first, the overwhelming importance of Presidential initiative in this area of power; secondly, the ever increasing dependence of foreign policy on Congressional cooperation and support. First one and then the other aspect of the relationship is uppermost. Thus the United Nations Participation Act of December 20, 1945 appeared to contemplate cooperation between the President and Congress in the carrying out of the duties of the United States to back up decisions of the Security Council involving the use of armed force.[351] When, nevertheless, the first occasion arose such action, namely, to repel the invasion in June, 1950 of South Korea by North Korean forces, no such agreement had been negotiated, and the intervention of the United States was authorized by the President without referring the question to Congress.[352]

CONGRESSIONAL IMPLEMENTATION OF PRESIDENTIAL POLICIES

No President was ever more jealous of his prerogative in the realm of foreign relations than President Woodrow Wilson. When, however, strong pressure was brought to bear upon him by Great Britain respecting his Mexican Policy he was constrained to go before Congress and ask for a modification of the Panama Tolls Act of 1911, which had also aroused British ire. Addressing Congress, he said "I ask this of you in support of the foreign policy of the Administration. I shall not know how to deal with other matters of even greater delicacy and nearer consequence if you do not grant it to me in ungrudging measure."[353] The fact is, of course, that Congress has enormous powers the support of which is indispensable to any foreign policy. In the long run Congress is the body that lays and collects taxes for the common defense, that creates armies and maintains navies, although it does not direct them, that pledges the public credit, that declares war, that defines offenses against the law of nations, that regulates foreign commerce; and it has the further power "to make all laws which shall be necessary and proper"--that is, which _it_ deems to be such--for carrying into execution not only its own powers but all the powers "of the government of the United States and of any department or officer thereof." Moreover, its laws made "in pursuance" of these powers are "supreme law of the land" and the President is bound constitutionally to "take care that" they "be faithfully executed." In point of fact, Congressional legislation has operated to augment Presidential powers in the foreign field much more frequently than it has to curtail them. The Lend-Lease Act of March 11, 1941[354] is the classic example, although it only brought to culmination a whole series of enactments with which Congress had aided and abetted the administration's foreign policy in the years between 1934 and 1941.[355]

THE DOCTRINE OF POLITICAL QUESTIONS

It is not within the province of the courts to inquire into the policy underlying action taken by the "political departments"--Congress and the President--in the exercise of their conceded powers. This commonplace maxim is, however, sometimes given an enlarged application so as to embrace questions as to the existence of facts and even questions of law which the Court would normally regard as falling within its jurisdiction. Such questions are termed "political questions," and are especially common in the field of foreign relations. The leading case is Foster _v._ Neilson,[356] where the matter in dispute was the validity of a grant made by the Spanish Government in 1804 of land lying to the east of the Mississippi River, involved with which question was the further one whether the region between the Perdido and Mississippi Rivers belonged in 1804 to Spain or the United States. Chief Justice Marshall held that the Court was bound by the action of the political departments, the President and Congress, in claiming the land for the United States. He said: "If those departments which are intrusted with the foreign intercourse of the nation, which assert and maintain its interests against foreign powers, have unequivocally asserted its right of dominion over a country of which it is in possession, and which it claims under a treaty; if the legislature has acted on the construction thus asserted, it is not in its own courts that this construction is to be denied. A question like this, respecting the boundaries of nations, is, as has been truly said, more a political than a legal question, and in its discussion, the courts of every country must respect the pronounced will of the legislature."[357] The doctrine thus clearly stated is further exemplified, with particular reference to Presidential action, by Williams _v._ The Suffolk Insurance Company.[358] In this case the underwriters of a vessel which had been confiscated by the Argentine Government for catching seals off the Falkland Islands contrary to that government's orders sought to escape liability by showing that the Argentinian government was the sovereign over these islands and that, accordingly, the vessel had been condemned for wilful disregard of legitimate authority. The Court decided against the company on the ground that the President had taken the position that the Falkland Islands were not a part of Argentina. It said: "Can there be any doubt, that when the executive branch of the government, which is charged with our foreign relations, shall, in its correspondence with a foreign nation, assume a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department? And in this view, it is not material to inquire, nor is it the province of the court to determine, whether the executive be right or wrong. It is enough to know, that in the exercise of his constitutional functions, he had decided the question. Having done this, under the responsibilities which belong to him, it is obligatory on the people and government of the Union. If this were not the rule, cases might often arise, in which, on most important questions of foreign jurisdiction, there would be an irreconcilable difference between the executive and judicial departments. By one of these departments, a foreign island or country might be considered as at peace with the United States; whilst the other would consider it in a state of war. No well-regulated government has ever sanctioned a principle so unwise, and so destructive of national character."[359] Thus the right to determine the boundaries of the country is a political function;[360] as is also the right to determine what country is sovereign of a particular region;[361] to determine whether a community is entitled under International Law to be considered a belligerent or an independent state;[362] to determine whether the other party has duly ratified a treaty;[363] to determine who is the _de jure_ or _de facto_ ruler of a country;[364] to determine whether a particular person is a duly accredited diplomatic agent to the United States;[365] to determine how long a military occupation shall continue in fulfillment of the terms of a treaty;[366] to determine whether a treaty is in effect or not, although doubtless an extinguished treaty could be constitutionally renewed by tacit consent.[367]

Recent Statements of the Doctrine

The assumption underlying the refusal of courts to intervene in such cases is well stated in the recent case of Chicago & S. Airlines _v._ Waterman Steamship Corp.[368] Here the Court refused to review orders of the Civil Aeronautics Board granting or denying applications by citizen carriers to engage in overseas and foreign air transportation which by the terms of the Civil Aeronautics Act[369] are subject to approval by the President and therefore impliedly beyond those provisions of the act authorizing judicial review of board orders.[370] Elaborating on the necessity of judicial abstinence in the conduct of foreign relations, Justice Jackson declared for the Court: "The President, both as Commander in Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit _in camera_ in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution on the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry."[371]

To the same effect are the Court's holding and opinion in Ludecke _v._ Watkins,[372] where the question at issue was the power of the President to order the deportation under the Alien Enemy Act of 1798 of a German alien enemy after the cessation of hostilities with Germany. Said Justice Frankfurter for the Court: "War does not cease with a cease-fire order, and power to be exercised by the President such as that conferred by the Act of 1798 is a process which begins when war is declared but is not exhausted when the shooting stops. * * * The Court would be assuming the functions of the political agencies of the Government to yield to the suggestion that the unconditional surrender of Germany and the disintegration of the Nazi Reich have left Germany without a government capable of negotiating a treaty of peace. It is not for us to question a belief by the President that enemy aliens who were justifiably deemed fit subjects for internment during active hostilities do not lose their potency for mischief during the period of confusion and conflict which is characteristic of a state of war even when the guns are silent but the peace of Peace has not come. These are matters of political judgment for which judges have neither technical competence nor official responsibility."[373]

The President as Law Enforcer

TYPES OF EXECUTIVE POWER

The Constitution does not say that the President shall execute the laws, but that "he shall take care that the laws be faithfully executed," i.e., by others, who are commonly, but not always with strict accuracy, termed his subordinates. What powers are implied from this duty? In this connection five categories of executive power should be distinguished: first, there is that executive power which the Constitution confers directly upon the President by the opening clause of article II and, in more specific terms, by succeeding clauses of the same article; secondly, there is the sum total of the powers which acts of Congress at any particular time confer upon the President; thirdly, there is the sum total of discretionary powers which acts of Congress at any particular time confer upon heads of departments and other executive ("administrative") agencies of the National Government; fourthly, there is the power which stems from the duty to enforce the criminal statutes of the United States; finally, there are so-called "ministerial duties" which admit of no discretion as to the occasion or the manner of their discharge. Three principal questions arise: first, how does the President exercise the powers which the Constitution or the statutes confer upon him; second, in what relation does he stand by virtue of the "take care" clause to the powers of other executive, or administrative agencies; third, in what relation does he stand to the enforcement of the criminal laws of the United States?

HOW THE PRESIDENT'S OWN POWERS ARE EXERCISED

Whereas the British monarch is constitutionally under the necessity of acting always through agents if his acts are to receive legal recognition, the President is presumed to exercise certain of his constitutional powers personally. In the words of an opinion by Attorney General Cushing in 1855: "It may be presumed that he, the man discharging the presidential office, and he alone, grants reprieves and pardons for offences against the United States, * * * So he, and he alone, is the supreme commander in chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States. That is a power constitutionally inherent in the person of the President. No act of Congress, no act even of the President himself, can, by constitutional possibility, authorize or create any military officer not subordinate to the President."[374] Moreover, the obligation to act personally may be sometimes enlarged by statute, as, for example, by the act organizing the President with other designated officials into "an Establishment by name of the Smithsonian Institute."[375] Here, says the Attorney General, "the President's name of office is _designatio personae_." He is also of opinion that expenditures from the "secret service" fund in order to be valid, must be vouched for by the President personally.[376] On like grounds the Supreme Court once held void a decree of a court martial, because, though it has been confirmed by the Secretary of War, it was not specifically stated to have received the sanction of the President as required by the 65th Article of War.[377] This case has, however, been virtually overruled, and at any rate such cases are exceptional.[378]

The general rule, as stated by the Court, is that when any duty is cast by law upon the President, it may be exercised by him through the head of the appropriate department, whose acts, if performed within the law, thus become the President's acts.[379] In Williams _v._ United States[380] was involved an act of Congress, which prohibited the advance of public money in any case whatever to disbursing officers of the United States, except under special direction by the President.[381] The Supreme Court held that the act did not require the personal performance by the President of this duty. Such a practice, said the Court, if it were possible, would absorb the duties of the various departments of the government in the personal acts of one chief executive officer, and be fraught with mischief to the public service. The President's duty in general requires his superintendence of the administration; yet he cannot be required to become the administrative officer of every department and bureau, or to perform in person the numerous details incident to services which, nevertheless, he is, in a correct sense, by the Constitution and laws required and expected to perform.[382] As a matter of administrative practice, in fact, most orders and instructions emanating from the heads of the departments, even though in pursuance of powers conferred by statute on the President, do not even refer to the President.[383]

POWER AND DUTY OF THE PRESIDENT IN RELATION TO SUBORDINATE EXECUTIVE OFFICERS

Suppose, that the law casts a duty upon a head of department _eo nomine_, does the President thereupon become entitled by virtue of his duty to "take care that the laws be faithfully executed," to substitute his own judgment for that of the principal officer regarding the discharge of such duty? In the debate in the House in 1789 on the location of the removal power Madison argued that it ought to be attributed to the President alone because it was "the intention of the Constitution, expressed especially in the faithful execution clause, that the first magistrate should be responsible for the executive department"; and this responsibility, he held, carried with it the power to "inspect and control" the conduct of subordinate executive officers. "Vest," said he, "the power [of removal] in the Senate jointly with the President, and you abolish at once the great principle of unity and responsibility in the executive department, which was intended for the security of liberty and the public good."[384] But this was said with respect to the office of Secretary of State; and when shortly afterward the question arose as to the power of Congress to regulate the tenure of the Comptroller of the Treasury, Madison assumed a very different attitude, conceding in effect that this officer was to be an arm of certain of Congress's own powers, and should therefore be protected against the removal power.[385] (_See_ p. 458). And in Marbury _v._ Madison,[386] Chief Justice Marshall traced a parallel distinction between the duties of the Secretary of State under the original act which had created a "Department of Foreign Affairs" and those which had been added by the later act changing the designation of the department to its present one. The former were, he pointed out, entirely in the "political field," and hence for their discharge the Secretary was left responsible absolutely to the President. The latter, on the other hand, were exclusively of statutory origin and sprang from the powers of Congress. For these, therefore, the Secretary was "an officer of the law" and "amenable to the law for his conduct."[387]

ADMINISTRATIVE DECENTRALIZATION VERSUS JACKSONIAN CENTRALISM

An opinion rendered by Attorney General Wirt in 1823 asserted the proposition that the President's duty under the "take care" clause required of him scarcely more than that he should bring a criminally negligent official to book for his derelictions, either by removing him or by setting in motion against him the processes of impeachment or of criminal prosecution.[388] The opinion entirely overlooked the important question of the location of the power to interpret the law which is inevitably involved in any effort to enforce it. The diametrically opposed theory that Congress is unable to vest any head of an executive department, even within the field of Congress's specifically delegated powers, with any legal discretion which the President is not entitled to control was first asserted in unambiguous terms in President Jackson's Protest Message of April 15, 1834,[389] defending his removal of Duane as Secretary of the Treasury, on account of the latter's refusal to remove the deposits from the Bank of the United States. Here it is asserted "that the entire executive power is vested in the President"; that the power to remove those officers who are to aid him in the execution of the laws is an incident of that power; that the Secretary of the Treasury was such an officer; that the custody of the public property and money was an executive function exercised through the Secretary of the Treasury and his subordinates: that in the performance of these duties the Secretary was subject to the supervision and control of the President: and finally that the act establishing the Bank of the United States "did not, as it could not change the relation between the President and Secretary--did not release the former from his obligation to see the law faithfully executed nor the latter from the President's supervision and control."[390] In short, the President's removal power, in this case unqualified, was the sanction provided by the Constitution for his power and duty to control his "subordinates" in all their official actions of public consequence.

CONGRESSIONAL POWER VERSUS PRESIDENTIAL DUTY TO THE LAW

Five years later the case of Kendall _v._ United States[391] arose. The United States owed one Stokes money, and when Postmaster General Kendall, at Jackson's instigation, refused to pay it, Congress passed a special act ordering payment. Kendall, however, still proved noncompliant, whereupon Stokes sought and obtained a mandamus in the United States circuit court for the District of Columbia, and on appeal this decision was affirmed by the Supreme Court. While Kendall _v._ United States, like Marbury _v._ Madison, involved the question of the responsibility of a head of department for the performance of a _ministerial_ duty, the discussion by counsel before the Court and the Court's own opinion covered the entire subject of the relation of the President to his subordinates in the performance by them of statutory duties. The lower court had asserted that the duty of the President under the faithful execution clause gave him no other control over the officer than to see that he acts honestly, with proper motives, but no power to construe the law, and see that the executive action conforms to it. Counsel for Kendall attacked this position vigorously, relying largely upon statements by Hamilton, Marshall, James Wilson, and Story having to do with the President's power in the field of foreign relations. The Court rejected the implication with emphasis. There are, it pointed out, "certain political duties imposed upon many officers in the executive department, the discharge of which is under the direction of the President. But it would be an alarming doctrine, that Congress cannot impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the Constitution; and in such cases the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the President. And this is emphatically the case, where the duty enjoined is of a mere ministerial character."[392] In short, the Court recognized the underlying question of the case to be whether the President's duty to "take care that the laws be faithfully executed" made it constitutionally impossible for Congress ever to entrust the construction of its statutes to anybody but the President; and it answered this in the negative.

MYERS CASE VERSUS HUMPHREY CASE

How does this issue stand today? The answer to this question, so far as there is one, is to be sought in a comparison of the Court's decisions in the Myers and Humphrey cases respectively.[393] The former decision is still valid to support the President's right to remove, and hence to control the decisions of, all officials through whom he exercises the great political powers which he derives from the Constitution; also all officials--usually heads of departments--through whom he exercises powers conferred upon him by statute. The Humphrey decision assures to Congress the right to protect the tenure, and hence the freedom of decision of all officials upon whom, in the exercise of its delegated powers, it confers duties of a "quasi-legislative" or a "quasi-judicial" nature. The former may be described as duties for the satisfactory discharge of which Congress justifiably feels that a specialized and informed judgment is requisite. The latter are duties the discharge of which closely touches private rights and which ought therefore be accompanied or preceded by a "quasi-judicial" inquiry capable of affording the claimants of such rights the opportunity to be heard. In neither case is the President entitled to force his reading of the law upon the officer, but only to take care that the latter exercise his powers according to his own best lights.

POWER OF THE PRESIDENT TO GUIDE ENFORCEMENT OF THE PENAL LAW

This matter also came to a head in "the reign of Andrew Jackson," preceding, and indeed foreshadowing, the Duane episode by some months. "At that epoch," Wyman relates in his Principles of Administrative Law, "the first announcement of the doctrine of centralism in its entirety was set forth in an obscure opinion upon an unimportant matter--The Jewels of the Princess of Orange, 2 Opin. 482 (1831). These jewels * * * were stolen from the Princess by one Polari, and were seized by the officers of the United States Customs in the hands of the thief. Representations were made to the President of the United States by the Minister of the Netherlands of the facts in the matter, which were followed by request for return of the jewels. In the meantime the District Attorney was prosecuting condemnation proceedings in behalf of the United States which he showed no disposition to abandon. The President felt himself in a dilemma, whether if it was by statute the duty of the District Attorney to prosecute or not, the President could interfere and direct whether to proceed or not. The opinion was written by Taney, then Attorney-General; it is full of pertinent illustrations as to the necessity in an administration of full power in the chief executive as the concomitant of his full responsibility. It concludes: If it should be said that, the District Attorney having the power to discontinue the prosecution, there is no necessity for inferring a right in the President to direct him to exercise it--I answer that the direction of the President is not required to communicate any new authority to the District Attorney, but to direct him in the execution of a power he is admitted to possess. The most valuable and proper measure may often be for the President to order the District Attorney to discontinue prosecution. The District Attorney might refuse to obey the President's order; and if he did refuse, the prosecution, while he remained in office, would still go on; because the President himself could give no order to the court or to the clerk to make any particular entry. He could only act through his subordinate officer the District Attorney, who is responsible to him and who holds his office at his pleasure. And if that officer still continue a prosecution which the President is satisfied ought not to continue, the removal of the disobedient officer and the substitution of one more worthy in his place would enable the President through him faithfully to execute the law. And it is for this among other reasons that the power of removing the District Attorney resides in the President."[394]

THE PRESIDENT AS LAW INTERPRETER

The power accruing to the President from his function of law interpretation preparatory to law enforcement is daily illustrated in relation to such statutes as the Anti-Trust Acts, the Taft-Hartley Act, the Internal Security Act, and many lesser statutes. Nor is this the whole story. Not only do all Presidential regulations and orders based on statutes which vest power in him or on his own constitutional powers have the force of law, provided they do not transgress the Court's reading of such statutes or of the Constitution,[395] but he sometimes makes law in a more special sense. In the famous Neagle case[396] an order of the Attorney General to a United States marshal to protect a Justice of the Supreme Court whose life had been threatened by a suitor was attributed to the President and held to be "a law of the United States" in the sense of section 753 of the Revised Statutes, and as such to afford basis for a writ of _habeas corpus_ transferring the said marshal, who had "got his man," from State to national custody. Speaking for the Court, Justice Miller inquired: "Is this duty [the duty of the President to take care that the laws be faithfully executed] limited to the enforcement of acts of Congress or of treaties of the United States according to their _express terms_, or does it include the rights, duties and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of the government under the Constitution?"[397] Obviously, an affirmative answer is assumed to the second branch of this inquiry, an assumption which is borne out by numerous precedents. And in United States _v._ Midwest Oil Company[398] it was ruled that the President had, by dint of repeated assertion of it from an early date, acquired the right to withdraw, via the Land Department, public lands, both mineral and nonmineral, from private acquisition, Congress having never repudiated the practice.

MILITARY POWER IN LAW ENFORCEMENT: THE POSSE COMITATUS

"Whenever, by reason of unlawful obstructions, combinations, or assemblages of persons, or rebellion against the authority of the Government of the United States, it shall become impracticable, in the judgment of the President, to enforce, by the ordinary course of judicial proceedings, the laws of the United States within any State or Territory, it shall be lawful for the President to call forth the militia of any or all the States, and to employ such parts of the land and naval forces of the United States as he may deem necessary to enforce the faithful execution of the laws of the United States, or to suppress such rebellion, in whatever State or Territory thereof the laws of the United States may be forcibly opposed, or the execution thereof forcibly obstructed."[399] This provision of the United States Code consolidates a course of legislation which began at the time of the Whiskey Rebellion of 1792.[400] In Martin _v._ Mott,[401] which arose out of the War of 1812, it was held that the authority to decide whether the exigency has arisen belongs exclusively to the President.[402] Even before that time, Jefferson had in 1808, in the course of his efforts to enforce the Embargo Acts, issued a proclamation ordering "all officers having authority, civil or military, who shall be found in the vicinity" of an unruly combination to aid and assist "by all means in their power, by force of arms and otherwise" the suppression of such combination.[403] Forty-six years later Attorney General Cushing advised President Pierce that in enforcing the Fugitive Slave Act of 1850, marshals of the United States, had authority when opposed by unlawful combinations, to summon to their aid not only bystanders and citizens generally, but armed forces within their precincts, both State militia and United States officers, soldiers, sailors, and marines,[404] a doctrine which Pierce himself improved upon two years later by asserting, with reference to the civil war then raging in Kansas, that it lay within his obligation to take care that the laws be faithfully executed to place the forces of the United States in Kansas at the disposal of the marshal there, to be used as a portion of the _posse comitatus_. Lincoln's call of April 15, 1861, for 75,000 volunteers was, on the other hand, a fresh invocation, though of course on a vastly magnified scale, of Jefferson's conception of a _posse comitatus_ subject to Presidential call.[405] The provision above extracted from the United States Code ratifies this conception as regards the State militias and the national forces.

SUSPENSION OF HABEAS CORPUS BY THE PRESIDENT

_See_ Article I, Section 9, clause 2, pp. 312-315.

PREVENTIVE MARTIAL LAW

The question of executive power in the presence of civil disorder is dealt with in modern terms in Moyer _v._ Peabody,[406] decided in 1909, to which the Debs Case,[407] decided in 1895, may be regarded as an addendum. Moyer, a labor leader, brought suit against Peabody, for having ordered his arrest during a labor dispute which occurred while Peabody was governor of Colorado. Speaking for a unanimous Court, one Justice being absent, Justice Holmes said: "Of course the plaintiff's position is that he has been deprived of his liberty without due process of law. But it is familiar that what is due process of law depends on circumstances. It varies with the subject matter and the necessities of the situation. * * * The facts that we are to assume are that a state of insurrection existed and that the Governor, without sufficient reason but in good faith, in the course of putting the insurrection down held the plaintiff until he thought that he safely could release him. * * * In such a situation we must assume that he had a right under the state constitution and laws to call out troops, as was held by the Supreme Court of the State. * * * That means that he shall make the ordinary use of the soldiers to that end; that he may kill persons who resist and, of course, that he may use the milder measure of seizing the bodies of those whom he considers to stand in the way of restoring peace. Such arrests are not necessarily for punishment, but are by way of precaution to prevent the exercise of hostile power. So long as such arrests are made in good faith and in the honest belief that they are needed in order to head the insurrection off, the Governor is the final judge and cannot be subjected to an action after he is out of office on the ground that he had not reasonable ground for his belief. * * * When it comes to a decision by the head of the State upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process."[408]

THE DEBS CASE

The Debs case of 1895 arose out of a railway strike which had caused the President to dispatch troops to Chicago the previous year. Coincidently with this move, the United States district attorney stationed there, acting upon orders from Washington, obtained an injunction from the United States circuit court forbidding the strike on account of its interference with the mails and with interstate commerce. The question before the Supreme Court was whether this injunction, for violation of which Debs has been jailed for contempt of court, had been granted with jurisdiction. Conceding, in effect, that there was no statutory warrant for the injunction, the Court nevertheless validated it on the ground that the Government was entitled thus to protect its property in the mails, and on a much broader ground which is stated in the following passage of Justice Brewer's opinion for the Court: "Every government, entrusted, by the very terms of its being, with powers and duties to be exercised and discharged for the general welfare, has a right to apply to its own courts for any proper assistance in the exercise of the one and the discharge of the other. * * * While it is not the province of the Government to interfere in any mere matter of private controversy between individuals, or to use its granted powers to enforce the rights of one against another, yet, whenever the wrongs complained of are such as affect the public at large, and are in respect of matters which by the Constitution are entrusted to the care of the Nation and concerning which the Nation owes the duty to all the citizens of securing to them their common rights, then the mere fact that the Government has no pecuniary interest in the controversy is not sufficient to exclude it from the courts, or prevent it from taking measures therein to fully discharge those constitutional duties."[409]

STATUS OF THE DEBS CASE TODAY

The restrictions imposed by the Norris-LaGuardia Act[410] on the issuance of injunctions by the federal courts in cases "involving or growing out of any labor dispute" later cast a shadow of doubt over the Debs case, which was deepened, if anything, by the Court's decision in 1947, in United States _v._ United Mine Workers.[411] But such doubts have been since dispelled by the Taft-Hartley Act, which provides that whenever in his opinion a threatened or actual strike or lockout affecting the whole or a substantial part of an industry engaged in interstate commerce will, "if permitted to occur or continue, imperil the national health or safety," the President may appoint a board of inquiry and, upon its so finding, "may direct the Attorney General to petition any district court of the United States having jurisdiction of the parties to enjoin such strike or lockout or the continuing thereof * * *," and the Court shall have jurisdiction to do so, provided it shares the President's view of the situation.[412] Administration and labor critics of the act did not challenge the constitutionality of this provision. They questioned its necessity in view of the President's "inherent powers" in the face of emergency.[413]

THE PRESIDENT'S DUTY IN CASES OF DOMESTIC VIOLENCE IN THE STATES

_See_ Art. IV, sec. 4, p. 705.

THE PRESIDENT AS EXECUTIVE OF THE LAW OF NATIONS

Illustrative of the President's duty to discharge the responsibilities of the United States at International Law with a view to avoiding difficulties with other governments, was the action of President Wilson in closing the Marconi Wireless Station at Siasconset, Massachusetts on the outbreak of the European War in 1914, the company having refused assurance that it would comply with naval censorship regulations. Justifying this drastic invasion of private rights, Attorney General Gregory said: "The President of the United States is at the head of one of the three great coordinate departments of the Government. He is Commander in Chief of the Army and the Navy. * * * If the President is of the opinion that the relations of this country with foreign nations are, or are likely to be, endangered by action deemed by him inconsistent with a due neutrality, it is his right and duty to protect such relations; and in doing so, in the absence of any statutory restrictions, he may act through such executive office or department as appears best adapted to effectuate the desired end. * * * I do not hesitate, in view of the extraordinary conditions existing, to advise that the President, through the Secretary of the Navy or any appropriate department, close down, or take charge of and operate, the plant * * *, should he deem it necessary in securing obedience to his proclamation of neutrality."[414]

PROTECTION OF AMERICAN RIGHTS OF PERSON AND PROPERTY ABROAD