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.