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Here is a positive assertion of an executive power to govern the Philippines without the interposition of Congress. Considering that the power claimed includes the supreme right to levy taxes in United States territory, it is not perceived why, were the claim a lawful one, the President could not ascertain and dispose of all the public lands in the islands, intrust the material development of the country largely to private monopolies, and then turn over to Congress the vast estate committed to his stewardship with the best part of its assets gone, and some of its greatest potentialities mortgaged. The Administration, indeed, disclaims the right to do such improvident things, but while this disclaimer is evidence of a just policy, it is inconsistent, theoretically, with the great powers claimed.

Research may disclose some instances of executive usurpation of the powers of Congress, but I think the present Administration is the first that has ever made new laws for United States territory under claim of right; certainly it is the first to defend its course before the courts.

As the Administration declares that its government of the islands “is maintained by the law of bel“ligerent right,” it may imagine that it enjoys the arbitrary powers of a conqueror. Or, as it seems to be committed to the doctrine that the Constitution is inoperative in the ceded territory, it may assume all governmental powers upon the theory that the constitutional separation of powers does not affect the President as the custodian of the Philippines. Neither of these positions is tenable, as I have shown.

1 See Opinions of the Attorney-General, vol. xxii, 544, 546, 551.

Arbitrary executive acts are not, indeed, always inexcusable or irreparable. “I am quite aware,” says an eminent jurist, “that in times of great public danger

unexpected perils, which the legislative power “have failed to provide against, may imperatively “demand instant and vigorous executive action, pass“ing beyond the limits of the laws; and that when “the Executive has assumed the high responsibility “of such a necessary exercise of mere power, he 'may justly look for indemnity to that department “of the government which alone has the rightful "authority to grant it - an indemnity which should be always sought and accorded upon the clearest admission of legal wrong, finding its excuse in the

exceptional case which made that wrong absolutely “necessary for the public safety.”ı

The redeemable legislative acts of a President are those which Congress could have passed, and can ratify. President Taylor sought and gained legislative approval for some acts of the military government of California,” and, already, Congress seems to have adopted, as far as possible, the legislation of the military government of Porto Rico.3

Legislatures have also passed acts of indemnity, protecting from suit persons concerned in the execution of illegal executive decrees. Thus Parliament acted in the case of “the forty days' tyranny” in 1766, during which the British Government sus



1 Executive Power, by Benjamin R. Curtis ; reprinted in G. T. Curtis's Constitutional History of the U. S., II, 673.

2 See Messages of the Presidents, V, 19; and supra, p. 113.
3 See Porto Rico Government Act, $ 7.
4 See Phillips v. Eyre, L. R. 4 Q. B. 225; L. R. 6 Q. B. 1.


pended the laws permitting the export of corn. Thus Congress acted for the protection of all per

who executed the orders of the military authorities engaged in conducting the Civil War.1

Whenever the Administration has legislated for Porto Rico and the Philippines since their annexation it has invaded the province of Congress, and all arguments of extenuation must come at last to the plea of necessity.

In considering this plea we must dismiss at the outset the notion that the assembling of Congress in stated session worked a change in the President's powers as administrator of the annexed territory by depriving him of legislative functions enjoyed of necessity during the recess. These powers are the same in recess as in session, since, in theory of law, the President neverlacks the coöperation of the legislature, except, perhaps, during the brief time needed to convene it in special session. If, then, the President possessed legislative powers of necessity when he might have called Congress but did not, his right must be based upon the mere inaction of Congress, and not upon the physical impossibility of its acting, for this was due to his failure to convene it; and on this theory he would possess legislative power while Congress sits but does not act. And this appears to be the opinion of the Administration, for during the last session of Congress the Secretary of War issued a decree forbidding the foreclosure of mortgages in Porto Rico for six months, unless Congress should otherwise provide. But it is impossible that legislative powers should accrue to the President because of the inaction of Congress. If, in his judgment, legislation for annexed territory is necessary, he may commend it to Congress in regular or special session; and if Congress shall not legislate on his motion or on its own, it is presumed to be satisfied with the existing body of law comprising the Constitution, the old law of the territory, and such United States statutes as may extend of their own force.

1 See Beard v. Burts, 95 U.S. 434, 438.

Whatever moral weight a plea of necessity may have when, in a recess of Congress instant action is required to avert a threatened peril, it has none in this case.

The governing of the islands is not an emergency in any extenuating sense. Congress had provided for their acquisition before it adjourned in March, 1899, and must be presumed to have expected that the President would be called upon to take charge of them during the usual recess. If, before the next regular session, there had arisen a need for legislation, the President should have convened Congress. He cannot plead the emergency of a condition caused by his failure to call the legislature.

Then in December, 1899, Congress assembled in stated session, during which it neglected the Philippines. Another recess followed, and, during this session and recess, the President persisted in legislating, no longer encouraged by even the pretense of emergency. The fact is that the President and Congress have combined to exalt the one and degrade the other by approving the theory that the President is a better legislature for the islands than Congress. As a matter of mere policy this theory is not commended by assuming that the alternative to executive legislation by the President's agents acting on the spot, with some knowledge of local conditions, was the direct regulation of insular affairs by Congress sitting thousands of miles away in absolute ignorance of these conditions. The practicable alternative was the establishment by Congress of a provisional government competent to exercise its delegated authority. In point of constitutional law the theory is not even open to discussion.

When the people commenced the Constitution with the law, “All legislative powers herein granted “shall be vested in a Congress of the United “States,” they laid a prohibition upon all Presidents at all times — upon Washington, prefigured as our

, first chief magistrate, as upon his unknown suc



The incapacity of the executive department to legislate for unorganized territory was recognized by President Jefferson in the case of Louisiana' and by President Polk in the case of California ;2 and the wretched plight of Alaska, a Territory neglected by Congress for more than thirty years, and accorded a proper government only a few months ago, has been laid before Congress by successive Presidents, none of whom supposed that the inactivity of the legislature gave him the right to act in its stead. Yet, while President McKinley said in his annual message of 1899,8 “ There is practically no organized form “of government in the Territory [Alaska]; there is "no authority except in Congress to pass any law,

1 Messages of the Presidents, I, 363. 2 Messages of the Presidents, IV, 589, 638. 3 Page 48.


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