President.

the state of the Union, and recommend to their consideration such Duties of the 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 shall commission all the officers of the United States.1

72. The President as Head of the National Administration*

The relation of the great executive departments to the President on one hand, and to Congress on the other, has never been nicely defined, and indeed it cannot be, from the very nature of the case. Congress, having power to create the departments and prescribe their duties, may obviously narrowly restrict the head officer. This seems entirely necessary and proper, but it is also obvious that, while the main outlines of the movements of the executive may be marked out, "there are numberless things which cannot be anticipated and defined, and are essential to useful and healthy action of government.” 2 The whole problem is discussed in an opinion by Attorney General Cushing in 1855, from which a few extracts are given here:

Constituvisions for

tional pro

of executive

Now, by the explicit and emphatic language of the Constitution, the executive power is vested in the President of the United States. In the perception, however, of the fact that the actual adminis- subdivision tration of all executive power cannot be performed personally functions. by one man, that this would be physically impossible, and that if it were attempted by the President, the utmost ability of that one man would be consumed in official details instead of being left free to the duty of general direction and supervision, in the perception, I say, of this fact, the Constitution provides for the subdivision of the executive powers, vested in the President, among administrative departments, using that term now in its narrower 1 For his veto power, see below, p. 217.

This question is considered in Fairlie, National Administration of the United States, pp. 16 sqq.

N

The creation of the first

and ordinary sense. What those "executive departments" shall be, either in number or functions, the Constitution does not say, any further than to determine that certain appointments may be made by their "heads," respectively, and that the President may require in writing the advice of any such "head" or "principal officer in each of the Executive Departments," for which reason those officers are sometimes characterized, and not improperly, as "constitutional advisers" of the President. Meanwhile, the great constitutional fact remains, that the "executive power" is vested in the President, subject only, in the respect of appointments and treaties, to the advice and consent of the Senate.

To constitute the "executive departments," through the instrudepartments. mentality of which, in part, the President was to administer government, became one of the earliest objects of the first constitutional Congress; and we must look to its acts for knowledge of the administrative system, which, in its great outlines, the statesmen of the constitutional era established as it exists at this day. They commenced with the erection of a Department of Foreign Affairs, (soon afterwards changed to the Department of State). A few days afterwards the Department of War was created, with "a principal officer," the "Secretary for the Department of War." Next came the Treasury Department, with "a Secretary of the Treasury, to be deemed the head of the Department." Following this act is that establishing "the Post Office," with "a Postmaster General, to be subject to the direction of the President of the United States in performing the duties of his office, and in forming contracts for the transportation of mail." Finally, came the act providing that "there shall also be appointed a meet person, learned in the law, to act as Attorney General for the United States."

Executive

departments are under the Presi

dent's direc

tion.

Such were the great departments of administration, with which the business of the Government of the United States commenced. Changes in detail were made by Congress, or by order of the President, from time to time, by the addition of new functions to this or that department, by change in the distribution of their

respective duties, and at length, by the creation of new departments. But, amid all these successive changes in detail, the original theory of departmental administration continued unchanged, namely, executive departments, with heads thereof discharging their administrative duties in such manner as the President should direct, and being in fact the executors of the will of the President. All the statutes of departmental organization, except one, expressly recognize the direction of the President, and in that one, the Interior, it is implied, because the duties assigned to it are not new ones, but such as had previously been exercised by other departments. It could not, as a general rule, be otherwise, because in the President is the executive power vested by the Constitution, and also because the Constitution commands that He shall take care that the laws be faithfully executed; thus making him not only the depository of the executive power, but the responsible executive minister of the United States.

Acts to be performed

But, if the direction of the President to the executive departments be assumed generally, or at least, in the general statutes of by the organization, may there not still be cases of distinction in which, President. by the Constitution or by statute, specific things must be done by the President himself or by Heads of Departments? Such cases do undoubtedly exist, and any view of the subject which omits to consider them, must be partial, defective, imperfect. We begin with examples of acts performable by the President, as prescribed by the Constitution. Thus it may be assumed that he, the man discharging the presidential office, and he alone, grants reprieves and pardons for offences against the United States, not another man, the Attorney General or anybody else, by delegation of the President. So he, and he alone, is the supreme commanderin-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.

What must the President do personally?

Statutes not uniform in

of executive functions.

So he appoints and removes ambassadors and other officers of the United States, in the cases and with the qualifications indicated by the Constitution. So he approves or disapproves of bills which have passed both Houses of Congress: that is a personal act of the President like the vote of a Senator or Representatives in Congress, not capable of performance by a Head of Department or any other person.

But the question, whether a given duty is to be the immediate deed of the President, or to be performed by delegation, does not seem to depend, at least in all its degrees, upon the fact of its being expressly enumerated in the Constitution; for, in certain stages of the negotiation of a treaty, anterior to and including its signature, he delegates full powers to another person. But, after all, it must be communicated by the President to the Senate, and it does not become the effective law of the land until there is exchange of ratifications, officially made and proclaimed by the President. At the same time, be it observed that, in the Constitution, no case occurs of the communication of power directly to any Head of Department, except in the respect of the appointment of such inferior officers as may be intrusted to them by act of Congress. We shall have reason to conclude, in the sequel, that even this cannot be regarded as a power independent of that of the President.

On an examination of the whole body of the statutes of the United States, it will be found that, in the designation of executive acts to be performed, there is no uniformity of language, no systematic style of legislation. Sometimes a statute says the President shall perform the act, sometimes that this or that Secretary shall perform it, without there being, in general, any constitutional or legal distinction between the authority of the respective acts, all of them being of things which, on the one hand, the President may, if he please, delegate to a Head of Department, and which, on the other hand, cannot be done by a Head of Department without direction of the President.

Take now the converse form of legislation, that common or

heads can

not act

President.

most ordinary style, in which an executive act is, by law, required Department to be performed by a given Head of Department. I think here the general rule to be as already stated, that the Head of Depart- against the ment is subject to the direction of the President. I hold that no Head of Department can lawfully perform an official act against the will of the President; and that will is by the Constitution to govern the performance of all such acts. If it were not thus, Congress might by statute so divide and transfer the executive power as utterly to subvert the Government, and to change it into a parliamentary despotism, like that of Venice or Great Britain, with a nominal executive chief utterly powerless, — whether under the name of Doge or King, or President, who would then be of little account, so far as regards the question of the maintenance of the Constitution.1

Without enlarging upon this branch of the inquiry, it will suffice to say that, in my opinion, all the cases in which a Head of Department performs acts, independent of the President, are reducible to two classes, namely: first, acts purely ministerial; and, secondly, acts in which the thing done does not belong to the office, but the title of the office is employed as a mere designatio persona.

To elucidate my thought in this respect, let us look into the daily course and routine of administration.

duties of executive

The Secretary of State is constantly receiving communications Ordinary from the public ministers and consuls of the United States abroad, from foreign ministers accredited to the United States, and from heads. private citizens having concerns in his department, and he is dispatching letters, instructions, orders, in return, to all parts of the world. The Secretary of the Treasury is in communication with collectors, assistant-treasurers, disbursing agents, and many other officers, as also with private individuals in all the multifarious business of his department. The Secretary of War and the Secretary of the Navy are receiving applications from, and addressing instructions and orders to, all the officers of the Army and Navy, and contractors and others persons within the juris

1 For an opposite view, see below, p. 200.