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In fact, then, the Executive department includes the President as its head, as the embodiment of Executive power, and the inferior ministerial officers, the cabinet, the foreign ministers, the revenue agents, the postal agents, the marshals, the law agents, and the like, who are but representatives of, and answerable to, the Chief Magistrate. He acts through them, they are his means and instruments for performing Executive functions.

§ 631. It should be carefully borne in mind that the President is an independent, co-ordinate department of the government. The grand theory of the Constitution makes him a co-equal in the tri-partite organization. He draws his power from the same source as the national legislature and judiciary; he is answerable to neither; his discretion is as absolute as that of any legislator, and more so than that of any judge; no other branch of the government may rightfully interfere with him in the exercise of that discretion; he can only be reached by an impeachment, when he has used his discretion, not merely in a mistaken or even arbitrary manner, but in a corrupt or criminal manner.

§ 632. It is true that Congress is authorized by Article I., Section VIII., § 18, "to make all laws which shall be necessary and proper for carrying into execution all powers vested by this Constitution in the government of the United States, or in any department or officer thereof." But this clause does not enable Congress to enlarge the capacity with which the President is independently clothed by the organic law; much less does it enable Congress to restrict, limit, or abridge that capacity. This grant to the legislature is intended as ancillary merely; it empowers that body to aid the President in the discharge of his executive functions; it may create opportunities or occasions for calling those functions into play. But Congress may not directly or indirectly establish another Executive than the President, either with complete or with partial powers and capacities. "The Executive power shall be vested in a President." "He shall take care that the laws be faithfully executed." The language is not that he shall execute the laws; and Congress may therefore create subordinate

offices, and may define the duties of the officers in the most positive manner, so that they shall be clothed with no discretion. Such officers would actually execute the laws; and the great mass of positive laws have been thus executed from the commencement of the government; and this arrangement appears to be absolutely necessary. But still the President must be left free to "take care that the laws be faithfully executed; " that is, free to take care that the subordinate officers, who are charged with express, positive duties, in fact perform those duties faithfully. Any attempt to clothe a subordinate official agent, whether of a high or of a low grade, with express, positive duties which he must fulfil to the letter, or with duties, in the fulfilment of which he has a discretion, and to remove him entirely from the control of the President, to make him entirely independent of the Chief Magistrate, — any such attempt would be directly contrary both to the letter and to the spirit of the Constitution. It would be so far a vesting the Executive power in a person other than the President; and it would so far deprive the President of the express power conferred upon him to "take care that the laws be faithfully executed." Great as is the legislative function, the people of the United States have never authorized their Congress to construct a new Constitution.

§ 633. The powers conferred upon the President are largely, almost entirely, political; and his acts, by which those powers are exercised, are equally political, as much so as the act of a legislator in voting for or against a proposed statute. Being thus political, they can rarely be brought within the scope of a judicial examination in the ordinary administration of justice. Whenever thus examined, it is not the direct personal act of the President which is submitted to this scrutiny, but the act of some inferior ministerial officer, who is in theory, and perhaps in practice, the direct instrument for exercising the executive function. Laws of Congress are always examinable, and are frequently examined by the courts, and pronounced valid or void. But even here the examination cannot take place until some attempt has been made to carry the law into execution, so that some individual rights are affected. When the

law is thus brought before the court having jurisdiction, that tribunal pronounces directly upon the question whether there be any such law; whether there be any thing which the executive department can execute. Thus the powers of the President may be questioned in an incidental manner; those of his subordinates may be questioned in a direct manner; for these powers, in each particular case, must be based upon some affirmative constitutional grant, or upon some existing law made. pursuant to the Constitution, which may be, or ought to be, enforced.

§ 634. But it should be noticed that even here the courts, whatever authority they may possess over subordinate ministerial officers, do not, and cannot, examine the nature and character of the President's acts, outside of the question whether there be a valid law, or an affirmative constitutional grant, as the foundation and support of those acts; and do not, and cannot, directly examine the President's personal acts, or restrain or control him in the exercise of his official functions, even though it be alleged that there is no valid law, or affirmative constitutional grant, to authorize and support such These principles were clearly set forth by Chief Justice Marshall in Marbury v. Madison, and were affirmed and established by the Supreme Court of the United States in the State of Mississippi v. Andrew Johnson.2

act.

Thus, if we could suppose the case that all existing statutes of Congress should be entirely repealed, and the country should be left absolutely without any national legislation, it is plain that a large portion of the powers and duties of the President, and all the powers and duties of his subordinates, would immediately become suspended, and would only be revived when Congress should again resume its work of creating positive law. In other words, although the capacity of the President to discharge his entire range of functions always exists, and is uncontrolled and uncontrollable by Congress or by the courts, yet the opportunities and occasions to exert these powers, and therefore the extent and number of the powers themselves, do and must rest largely upon the prior exercise 1 1 Cranch's R. 137.

2 4 Wallace's R. 475

of the legislative will. This is peculiarly true of that great mass of subordinate civil officers whose creation is within the authority of Congress. These persons are appointed to fill official positions; the very offices themselves are established to carry out and enforce certain special laws, or classes of laws; the functions and duties are defined; there is no discretion allowed; the number and scope of these functions and duties depend, therefore, upon the legislative act which lies back of all this mode of execution. But while in great measure the opportunities and occasions for the President to use powers, and the number and scope of those powers themselves, do in fact, and must by any theory, largely depend upon a prior exercise of the legislative will, this is not completely and absolutely true. And this leads me to consider the nature of the President's executive attributes and functions in their totality, and the classes into which they necessarily separate themselves.

§ 635. There are three independent classes of executive attributes and functions, all resulting from the provisions of the national Constitution.

First. As the President is an independent, co-ordinate branch of the government, and as the Constitution contains some express affirmative grants of power to him alone, there are and must be certain attributes and functions which have no connection with proper legislation; which are completely conferred by the terms of the organic law; which do not depend upon any prior statutes for the opportunities or occasions of their exercise, nor for their number and scope; which would still exist and might still be carried into operation, if Congress should blot out all its laws, or should attempt to restrain and limit the President, in his official proceedings, from calling them into action. Such suppositions as the latter are, of course, violent, and perhaps absurd; but they serve to draw the line of demarcation between the various kinds and classes of executive attributes, and to point out the relations between the departments of the general government.

§ 636. In respect to the executive powers which fall within this class, the President is clothed with an absolute, unlimited

discretion. The acts done by virtue of these powers are completely political. The subjects themselves, over which the powers extend, do not fall within the province of Congressional legislation; and that body cannot by any laws enlarge or diminish the President's capacity; it can do nothing more than pass such laws, if it thinks proper, as shall aid the Chief Magistrate in the execution of these powers. Nor may the courts interfere, and assume to regulate the President's conduct. His great responsibility is to the people; and the sole official check is his liability to an impeachment.

By far the most important function of this class is that which relates to the management of foreign affairs, and includes the power to make treaties with the consent of the Senate, and the power to receive and hold communication with foreign minisOf far less moment are the powers to furnish information to Congress, to recommend measures, to convene either or both houses, and to adjourn the Congress in a certain emergency.

ters.

No doubt these independent and absolute attributes of the President would be barren of any great results without the co-operation of the other departments, and especially of the legislature; but it is certainly possible to suppose that they should exist and be exercised separately. By thus supposing a case where one department should act entirely alone, we are able to clear up and fix our conceptions of their respective independent and mutually dependent functions while they act together.

§ 637. Second. The second class of executive attributes and functions are those which depend upon some prior statute of Congress for the opportunities and occasions upon which they may be exercised. The constitutional grants of power are affirmative and express; but they relate to such a class of acts, that Congress must furnish the subject-matter upon which the power may be exerted. But even here, the legislature has exhausted its authority when it has furnished the occasion or opportunity. The executive attributes having been brought into play, the discretion of the President is as absolute and unlimited as in the cases embraced within the former class. His power

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