1 IO

THE GREEN BAG

CONSTITUTIONAL LAW (Powers of the President)

THE striking address of Charles A. Gardiner before the New York State Bar Association entitled, "The Constitutional Powers of the President," was given such wide publicity in the morning newspapers of January igth (it is printed in full in the Boston Herald of that date), and has aroused so much hostile criticism that we depart from our custom to review only legal periodicals, and assuming the accuracy of the report will review it while it is still fresh in the public mind. It has often been observed that the office of President might well in great national emergencies take on all the powers of a dictator, and the Civil War demonstrated in a measure, the truth of this. Mr. Gardiner, however, seems to have described these powers as the ordinary inci dents of the office and finds an exemplification thereof in the conduct of the present admin istration and a confirmation in the last na tional election. He sums up his conclusions as follows: "i — Under the constitution, the President is sole executor of his office. Congress has ab solutely nothing to do with it, nor have the courts. Possessing sole power and being bound by his oath to exercise it, the President must necessarily possess exclusive and abso lute discretion in executing the entire presidential office. "2 — Nor is the President's discretion lim ited in executing the constitution. His power to execute it, we have seen, is plenary. It is also exclusive. The courts have no power to execute it. Nor has Congress. It has per missive authority to 'enforce' the war amend ments by 'appropriate legislation.' That defines the means of enforcement — by legis lative enactment — by enacting ' appropriate ' laws — not by executive action. Whatever else Congress may do, it cannot encroach upon the executive power of the President. His power to execute the constitution is exclusive. Hence, also, his discretion must be equally exclusive and absolute. "How much of the constitution the Presi dent can execute is a problem for practical statesmanship. Whatever is 'complete in it self,' said the court, 'is self-executing. ' 'It executes itself," 'it needs no further legisla tion to put it in force.' (179 U. S. 403.) The

great substantive grants of the constitution are 'self-executing,' and specifically, I maintain, are freedom secured by the I3th amendment, negro citizenship granted by the I4th, and equality of suffrage guaranteed by the isth —• and the President can execute all these on his own initiative without interference from courts or Congress, and with exclusive and absolute discretion. "3 — The discretion of the President in exe cuting the laws of Congress is also absolute. The subject matter of a law is determined by Congress, and the President can neither add to nor detract from its substance. Congress may also regulate all ministerial details even in the minutest particulars — but whatever is left for the President to execute, be the same more or less, he can execute with as absolute discretion as he executes his office or the con stitution. "Another consideration, however, must al ways govern the President. By the very law of his being he is subject first to the constitu tion, and in executing statutes his discretion must be subordinate to the higher law of his being — the obligation faithfully to execute his office and the constitution. He must first decide whether or not a law should be exe cuted at all, and in deciding that, he may sub ordinate laws of Congress and decrees of courts to reasons of state. "When, in his judgment, the highest good of the people forbids him to execute a law, he may refuse to execute it, although Congress may direct him to do so. "When his judgment pronounces a law con stitutional, he may execute it, although the courts declare it unconstitutional and forbid him to execute it; and he may refuse to exe cute a law that the courts declare constitu tional and command him to execute. Such exercise of his discretion cannot be revised by any judicial or legislative proceeding (4 Wall. 498-9); the only remedy is impeachment. But so long as he acts 'faithfully,' that is to the best of his judgment, his discretion is final and conclusive." "The doctrine governing the whole subject is best summarized by Jefferson. 'Each of the three departments," he said, 'has equally the right to decide for itself what is its duty under the constitution, without any regard to