CHAPTER VII

THE LAW OF THE EXECUTIVE POWER

84. The executive power of the United States is vested in a President. The executive is single,—that is, one person. He possesses all the executive powers which the sovereign,—the people of the United States, have conferred. His power is derivative, not original. His power is not defined by the Constitution, that is, it is not fully set forth by limitations. It is limited in two particulars: he cannot grant reprieves or pardons in cases of impeachment, and he solemnly swears or affirms faithfully to execute the office of President of the United States. This solemn obligation implies that he himself is not the sole or the final judge of his fidelity in executing his office. This responsibility of the President to a superior, in certain cases, is clearly stated by the Constitution itself: first, that the House of Representatives shall have the sole power of impeachment, and secondly, that the Senate shall have the sole power to try all impeachments, and when sitting for that purpose, its members shall be on oath or affirmation. When the President is tried, the Chief Justice of the United States shall preside, and no person shall be convicted without the concurrence of two thirds of the members present.[220]

85. Whether or not the President has performed the duties of his office is a political question and may alone be determined by impeachment and conviction. President Johnson was impeached but not convicted,—whence the conclusion that he faithfully executed the office of President. The term “office” is not used in the Constitution as descriptive of the exercise of legislative power by either House or by its respective members. Senators and Representatives receive a compensation for their “services.” No person holding any “office” under the United States can be a member of either House during his continuance in “office.”[221] But the Constitution does not apply the term “office” to the two-year term of a Representative, or to the six-year term of a Senator, or to the duties, rights, privileges, qualifications, or powers of either. We shall see that the term is applied to judges of the United States.

86. The executive power of the United States is vested in a President, and the faithful exercise of that delegated power is the faithful execution of the office of President. From the nature of the power it cannot be defined. The office was created by the people of the United States at the close of the eighteenth century, when distrust of the executive (the crown) was dominant in the American mind. The trend then was to enthrone the legislative and to dethrone the executive. It is remarkable that the supreme law of the land, made at that time, should vest such vast powers in the executive. He is commander-in-chief of the army and navy and of the State militia when in the actual service of the United States[222] but Congress alone can declare war.[223] He participates in legislation, and possesses the veto power (which constitutionally comprises that participation)[224] but unlike the governor, under some later constitutions, he cannot veto a particular item in an appropriation bill.[225]

He makes treaties, provided two thirds of the Senators present concur,[226] and the control of our foreign relations is in his hands.[227] Thus, though not possessing the war power by the verbal provisions of the Constitution, he may by his policy, involve the United States in war. He possesses the appointing power, thus determining who shall fill judicial and administrative offices, under the Constitution,[228] a power, the exercise of which practically determines the character of the federal government. In brief, excepting members of the Senate and of the House, all now elected directly by the people and who, at present, comprise, numerically, about one one thousandth part of the aggregate public servants in the government of the United States, the President,—that is, the executive power of the United States delegated to the President, appoints the vast body of officials in the national service. Most of these officials have ministerial duties; a few have judicial. Strictly speaking, the President is the only executive officer provided for by the Constitution.

87. In the “Executive Department” (an expression known to the Constitution[229]), it is the President alone who makes the appointments. “The principal officer in each of the executive departments” is known to us as a member of the Cabinet, and is an appointee of the President. The office of a member of the Cabinet affords an illustration of that rare tenure, a tenant at will. This tenure is stated by Lincoln in a memorandum read to his Cabinet: “I must myself be the judge how long to retain and when to remove any of you from his position.”[230]

88. The President cannot be enjoined from dismissing, or be mandamused to receive a person, from or into his Cabinet. Indeed, such is the nature of the office of President, he is not amenable to writs of the law. He cannot be compelled by law to approve or to disapprove a bill that has passed Congress; or to appoint or to refrain from appointing any person to any office within his jurisdiction. Nor can he be questioned in any court of law respecting his office, nor be made a witness in any controversy. His powers are adequate to the execution of his office. It may be said that this is essentially true of the legislative,—the Congress, and of the judiciary,—the Courts of the United States.

89. Thus the President has power to protect a federal judge from threatened personal attack.[231] He has power to receive ambassadors and other public ministers and representatives of other sovereignties, a power which implies his right to refuse to receive those sent, or to dismiss those sent, or to request their recall, or to discontinue relations with them. Nor can any person, or State, through any court of law, compel or forbid him to do either. In other words, the powers of the President of the United States are executive, not ministerial. This distinction applies to no appointee of the President, in any of the executive departments. Their office is ministerial and every ministerial office in the government of the United States is subject to inquiry through a court of law.[232]

Thus the executive power of the United States is not subject to the legislative power.[233] We have seen that it is not subject to the judicial power. Yet, if this be so, by what power can the President be impeached for not faithfully executing his office?

90. The restraint of impeachment is not legislation nor the exercise of legislative powers vested in Congress. Impeachment is the accusation made by the House of Representatives that the President has not faithfully executed his office. Conviction is the adverse judgment of the Court of Impeachment,—the Senate sitting under special oath for a special purpose, not legislative, as duly provided for by the Constitution. Had the people of the United States, in 1787, chosen to provide, in the Constitution, for a Court of Impeachment consisting, say, of Governors of States, or that State Legislatures should have the sole power of impeachment, no one would claim that the governors or the legislators so engaged were exercising either executive or legislative functions. So the Houses of Congress engaged in an impeachment trial of the President, or of any “officer of the United States” are not engaged in legislation. If Congress possessed legislative power to remove the President, it could vacate the presidential office by an act and pass it over the President’s veto. Such a power vested in Congress would nullify the power vested in the President and would make him a creature of Congress.

91. The constitutional provision that when the Senate sits as a Court of Impeachment the Chief Justice of the United States shall preside,[234] in no way affects the judicial power vested in the supreme and inferior Courts of the United States. The reason for the provision is obvious. The Senate, which is the special Court of Impeachment, has ordinarily, and by the Constitution, two presiding officers: one, _ex officio_, the Vice-President; the other, the President _pro tempore_, who is a Senator.[235]

The conviction of a President removes him from the office and the Vice-President (or whosoever by law is in line of succession) succeeds him. The President _pro tempore_ of the Senate, votes in the Court of Impeachment as a Senator. If either the Vice-President, or the President _pro tempore_ presided over the Court of Impeachment, when a President is on trial, the principle of freedom from official, or one may say, personal bias would be violated. The Chief Justice presides,—an official of high rank, disinterested, save to be fair to all parties, and capable of so ruling. But when the Court of Impeachment sits to try other officials (except the Vice-President) the Chief Justice does not preside. When he presides and makes rulings they are not comparable to rulings or decisions he renders as the voice of the Supreme Court. The finding of the Court of Impeachment is not analogous to the decisions of that Court.

92. It follows therefore that the executive power of the United States, vested in the President, is not subject to the legislative or to the judicial power. It is independent of either or both. Yet the people of the United States have provided for their relief from a faithless execution of the office of President by combining Congress and the Chief Justice of the United States as a special body, or agency, a Court of Impeachment through which to secure relief.

93. It is evident that the power of the President of the United States is very great.

The scope of this executive power has never been realized [remarked President Hayes], and the practical use of power, even by an ordinarily strong President, is greater than the books ever described. The executive power is large because not defined in the Constitution. The real test has never come, because the Presidents, down to the present, have been conservative, or what might be called conscientious, men, and have kept within limited range. And there is an unwritten law of usage that has come to regulate an average administration. But if a Napoleon ever became President, he would make the executive almost what he wished to make it.[236] Practically the President has the nation in his hands.[237]

94. The principle, difficult to understand, regulative of the constitutional law of the executive power, is the principle of executive as distinct from ministerial power.

A ministerial duty, the performance of which may, in proper cases, be required of the head of a department, by judicial process, is one in which respect to nothing is left to discretion. It is a simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law.[238]

This means that where the law requires the performance of a single specific act, there is no room for the exercise of judgment, there is nothing left to discretion; the act is ministerial. “Very different is the duty of the President in the exercise of the power to see that the laws are faithfully executed,—the duty thus imposed is in no sense ministerial; it is purely executive and political.”[239]

In application of this principle

The Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to cognizance.[240]

95. The principle applies alike to the States. The control of the exercise of powers belonging exclusively to the executive department of the government of a State can in no sense or degree be assumed by either of the other departments, as such control would amount to the performance of executive duties by the legislative or the judiciary, a confusion of functions distinctly forbidden by the constitution. And it has been decided that “_mandamus_ will not issue to the Governor to compel the performance of _any_ duty pertaining to his office, whether political or merely ministerial; whether commanded by the constitution or by some law passed on the subject.”[241]

The principle of American constitutional law as to executive and ministerial powers is thus stated:

The Court will not interfere by _mandamus_ with the executive officers of the government in the exercise of their ordinary official duties, even where those duties require an interpretation of the law, the Court having no appellate power for that purpose; but when they refuse to act in a case at all, or when by special statute, or otherwise, a more ministerial duty is imposed upon them, that is, a service which they are bound to perform without further question, then, if they refuse, a _mandamus_ may be issued to compel them.[242]

NOTE—Hamilton in _The Federalist_ makes the classic and earliest examination of the executive power,—Nos. lxvii.-lxxvi. Marshall’s conception of the federal executive accords with Hamilton’s. This conception is further developed in the decisions of the Supreme Court, in Marshall’s time, concerning executive functions, and by Mr. Justice Story in his _Commentaries on the Constitution_. In _Political Science and Constitutional Law_ (2 vols. 1891), John W. Burgess makes a critical and comparative study of executive power. J. H. Finley and J. F. Sanderson in their _The American Executive and Executive Methods_ (1908), present the operation of executive power, State and federal, at the present time.