>president, that you consider particularly the fifth section as part of your instructions, and govern yourself accordingly.

A proper discharge of the important duties enjoined on you, arising out of this act, will require the exercise of a sound and impartial judgment. You are not only to do all that in your lies to prevent all intercourse, whether direct or circuitous, between the ports of the United States and those of France and her dependencies, in cases where the vessels or cargoes are apparently, as well as really, American, and protected by American papers only; but you are to be vigilant that vessels or cargoes really American, but covered by Danish or other foreign papers, and bound to or from French ports, do not escape you *** 20

Chief Justice Marshall delivered the opinion of the Court. Interestingly enough he suggested that the President as Commander in Chief might have authorized seizure of American vessels without any special authority, but he held that since Congress had legislated, the law had to be followed, and the law did not authorize seizure of vessels bound from a French port.

It is by no means clear that the President of the United States, whose high duty it is to "take care that the laws be faithfully executed," and who is commander in chief of the armies and navies of the United States, might not, without any special authority for that purpose, in the then existing state of things, have empowered the officers commanding the armed vessels of the United States, to seize and send into port for adjudication, American vessels which were forfeited by being engaged in this illicit commerce. But when it is observed that the general clause of the first section of the "act, which declares that such vessels may be seized, and may be prosecuted in any distrist or circuit court, which shall be holden within or for the district where the seizure shall be made," obviously contemplates a seizure within the United States; and that the 5th section gives a special authority to seize on the high seas, and limits that authority to the seizure of vessels bound, or sailing, to, a French port, the legislature seem to have prescribed that the manner in which this law shall be carried into execution, was to exclude a seizure of any vessel not bound to a French port. Of consequence, however strong, the circumstances might be, which induced Captain Little to suspect the Flying Fish to be an American vessel, they could not excuse the detention of her, since he would not have been authorized to detain her had she been really American. * * * 21

The officer who seized the ship in question was held liable for damages even though he was following an order of the President and the Secretary of the Navy.

These orders given by the executive under the construction of the act of congress made by the department to which its execution was assigned, enjoin the seizure of American vessels sailing from a French port. Is the officer who obeys them liable for damages sustained by this misconstruction of the act, or will his orders excuse him? If his instructions afford him no protection, then the law must take its course, and he must pay such damages as are legally awarded against him; if they excuse an act not otherwise excusable, it would then be necessary to inquire whether this is a case in which the probable cause which existed to induce a suspicion that the vessel was American, would excuse the captor from damages when the vessel appeared in fact to be neutral.

I confess the first bias of my mind was very strong in favour of the opinion that though the instructions of the executive could not give a right, they might yet excuse from damages. I was much inclined to think that a distinction ought to be taken between acts of civil and those of military officers; and between proceedings within the body of the country and those on the high seas. That implicit obedience which military men usually pay to the orders of their superiors, which indeed is indispensably necessary to every military system, appeared to me strongly to imply the principle that those orders, if not to perform a prohibited act, ought to justify the person whose general duty it is to obey them, and who is placed by the laws of his country in a situation which in general requires that he should obey them. I was strongly inclined to think that where, in consequence of orders from the legitimate authority, a vessel is seized with pure intention, the claim of the injured party for damages would be against that government from which the orders proceeded, and would be a proper subject for negotiation. But I have been convinced that I was mistaken, and I have receded from this

20 2 Cranch 171.

21 2 Cranch 177-178

opinion. I acquiesce in that of my brethren, which is, that the instructions cannot change the nature of the transaction, or legalize an act which, without those instructions, would have been a plain trespass.

It becomes, therefore, unnecessary to inquire whether the probable cause afforded by the conduct of the Flying Fish to suspect her of being an American would excuse Captain Little from damages for having seized and sent her into port, since, had she been an American, the seizure would have been unlawful? Captain Little, then, must be answerable in damages to the owner of this neutral vessel, and as the account taken by order of the circuit court is not objectionable on its face, and has not been excepted to by counsel before the proper tribunal, this court can receive no objection to it. * * * 22

While the Supreme Court has indicated that the power of Congress to deal with matters entrusted to it under the Constitution are exceedingly broad, there are certain limitations on the right of Congress to act vis-a-vis the President.

When the Constitution specifically vests a function or office in the President, the Congress may not divest the President of such constitutional office or function by legislation. Thus it would take a constitutional amendment to assign the position of Commander in Chief to anyone other than the President. Similarly Congress cannot detract from the power of pardon granted to the President by the Constitution.23

Congress by legislation also may not enlarge the President's powers by delegating legislative power to the President. In this regard the President is in the same position as any other administrative agency of the Government. Thus the Court has refused to uphold the validity of a section of the National Industrial Recovery Act, under which the President had issued two Executive orders adopting rules and regulations the violation of which purported to carry a criminal penalty under the statute, because the statute had merely authorized the President to prohibit the transportation in interstate and foreign commerce of petroleum in excess of quotas prescribed within a State by State law or regulation. Said the Court:

*** Thus, in every case in which the question has been raised, the Court has recognized that there are limits of delegation which there is no constitutional authority to transcend. We think that sec. 9 (c) goes beyond those limits. As to the transportation of oil production in excess of state permission, the Congress has declared no policy, has established no standard, has laid down no rule. There is no requirement, no definition of circumstances and conditions in which the transportation is to be allowed or prohibited.

If sec. 9 (c) were held valid, it would be idle to pretend that anything would be left of limitations upon the power of the Congress to delegate its lawmaking function. The reasoning of the many decisions we have reviewed would be made vacuous and their distinctions nugatory. Instead of performing its lawmaking function, the Congress could at will and as to such subjects as it chose transfer that function to the President or other officer or to an administrative body. The question is not of the intrinsic importance of the particular statute before us, but of the constitutional processes of legislation which are an essential part of our system of government.24

22 2 Cranch 179.

23 U. S. v. Klein, 13 Wall. 128, 147-48; 1871:

"***To the executive alone is intrusted the power of pardon; and it is granted without limit. Pardon includes amnesty. It blots out the offence pardoned and removes all its penal consequences. It may be granted on conditions. In these particular pardons, that no doubt might exist as to their character, restoration of property was expressly pledged, and the pardon was granted on condition that the person who availed himself of it should take and keep a prescribed oath.

"Now it is clear that the legislature cannot change the effect of such a pardon any more than the executive can change a law. Yet this is attempted by the provision under consideration. The court is required to receive special pardons as evidence of guilt and to treat them as null and void. It is required to disregard pardons granted by proclamation on condition, though the condition has been fulfilled, and to deny them their legal effect. This certainly impairs the executive authority and directs the court to be instrumental to that end."

24 Panama Refining Co. v. Ryan, 293 U. S. 388, 430; 1934.

And where standards are laid down by the Congress to control the exercise of functions conferred on him by statute the President must adhere to the standards in his actions:

*** There is another objection to the validity of the prohibition laid down by the Executive Order under sec. 9 (c). The Executive Order contains no finding, no statement of the grounds of the President's action in enacting the prohibition. Both sec. 9 (c) and the Executive Order are in notable contrast with historic practice (as shown by many statutes and proclamations we have cited in the margin) by which declarations of policy are made by the Congress and delegations are within the framework of that policy and have relation to facts and conditions to be found and stated by the President in the appropriate exercise of the delegated authority. If it could be said that from the four corners of the statute any possible inference could be drawn of particular circumstances or conditions which were to govern the exercise of the authority conferred, the President could not act validly without having regard to those circumstances and conditions. And findings by him as to the existence of the required basis of his action would be necessary to sustain that action, for otherwise the case would still be one of an unfettered discretion as the qualification of authority would be ineffectual. * * *25 The Court concluded:

*** We cannot regard the President as immune from the application of these constitutional principles. When the President is invested with legislative authority as the delegate of Congress in carrying out a declared policy, he necessarily acts under the constitutional restriction applicable to such a delegation.

We see no escape from the conclusion that the Executive Orders of July 11, 1933, and July 14, 1933, and the Regulations issued by the Secretary of the Interior thereunder, are without constitutional authority. * * * 26

The Court in its opinion emphasized that due process of law required adherence to these requirements and that determinations of fact had to be made and shown.27

By way of contrast it is well settled that the Congress may empower or direct the President to declare the existence of specified facts or conditions by proclamation or otherwise and thereby to

25 Ibid., p. 431.

20 Ibid., p. 433.

27 Ibid, p. 432. But see the Curtiss-Wright Case, 299 U. S. 304; 316-330; 1936, wherein the court indicates that it will allow more latitude in Congressional delegation of power to the President in the area of international relations.

**** As a result of the separation from Great Britain by the colonies acting as a unit, the powers of external sovereignty passed from the Crown not to the colonies severally, but to the colonies in their collective and corporate capacity as the United States of America. Even before the Declaration, the colonies were a unit in foreign affairs, acting through a common agency-namely the Continental Congress, composed of delegates from the thirteen colonies. That agency exercised the powers of war and peace, raised an army, created a navy, and finally adopted the Declaration of Independence. Rulers come and go; governments end and forms of government change; but sovereignty survives. A political society cannot endure without a supreme will somewhere. Sovereignty is never held in suspense. When, therefore, the external sovereignty of Great Britain in respect of the colonies ceased, it immediately passed to the Union. See Penhallow v. Doane, 3 Dall. 54, 80-81. That fact was given practical application almost at once. The treaty of peace, made on September 23, 1783, was concluded between his Brittanic Majesty and the "United States of America." 8 Stat.-European Treaties-80.

"The Union existed before the Constitution, which was ordained and established among other things to form 'a more perfect Union.'"

"It results that the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality **

*

* As a member of the family of nations, the right and power of the United States in that field are equal to the right and power of the other members of the international family. Otherwise, the United States is not completely sovereign

* *

* It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations-a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution. It is quite apparent that if, in the maintenance of our international relations, embarrassment-perhaps serious embarrassment-is to be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved * * *"'

make some provision of law operative,28 or to suspend the operation of certain provisions of law.29

2. HIGHLIGHTS OF CERTAIN CONSTITUTIONAL AND LEGAL DEVELOPMENTS AFFECTING THE USE OF THE EXECUTIVE POWER

It has been the practice, on occasion, to cite certain Executive actions as binding legal precedent even though never accepted as such by the courts and at the same time to minimize the adjudications by the courts in delineating the limits of Executive power under the actions as binding legal precedent even though never accepted as such Constitution.30 There have been however, a sufficient number of judicial decisions to enable us to see what the courts think of the nature and scope of the executive power, in addition to those already discussed. Further illustrations of the court's determinations are treated below.

The nature and limitations of Executive power have been a matter of controversy from the very beginning of our Nation. It is advisable to quote what appear to be two differing attitudes toward the Presidential power held by former Presidents. It is also useful to bear in mind that both viewpoints have been reconciled in practice in our history by a larger interpretation of the office of President which recognizes that the people have given certain powers to the Federal Government and prescribed a mechanism for functioning according to the basic blueprint of the Constitution. Under this blueprint the authority vested in the President is not untrammeled or unlimited.

President Theodore Roosevelt stated his views of the Presidential office as follows:

*** I declined to adopt the view that what was imperatively necessary for the Nation could not be done by the President unless he could find some specific authorization to do it. My belief was that it was not only his right but his duty to do anything that the needs of the Nation demanded unless such action was 28 The Brig Aurora, 7 Cranch 382; 1813.

29 Field v. Clark, 143 U. S. 649, 693; 1891. The Court stated in part:

* But when he ascertained the fact that duties and exactions, reciprocally unequal and unreasonable, were imposed upon the agricultural or other products of the United States by a country producing and exporting sugar, molasses, coffee, tea or hides, it became his duty to issue a proclamation declaring the suspension, as to that country, which Congress had determined should occur. He had no discretion in the premises except in respect to the duration of the suspension so ordered. But that related only to the enforcement of the policy established by Congress. As the suspension was absolutely required when the President ascertained the existence of a particular fact, it cannot be said that in ascertaining that fact and in issuing his proclamation, in obedience to the legislative will, he exercised the function of making laws. Legislative power was exercised when Congress declared that the suspension should take effect upon a named contingency. What the President was required to do was simply in execution of the act of Congress. It was not the making of law. He was the mere agent of the lawmaking department to ascertain and declare the event upon which its expressed will was to take effect. It was a part of the law itself as it left the hands of Congress that the provisions, full and complete in themselves, permitting the free introduction of sugars, molasses, coffee, tea and hides, from particular countries, should be suspended, in a given contingency, and that in case of such suspensions certain duties should be imposed. ***"

30 Illustrative of the comments by writers who tend to minimize the role of the courts is the following: "*** The last control over the exercise of Presidential power to be mentioned lies in the practice of judicial review. This form of control will not be discussed at length at this point because from time to time in discussing the instances of practical construction of constitutional powers by holders of the Presidential office, the limits drawn by the courts in reviewing these actions of the President may be appropriately indicated. It is sufficient to say generally that in effect judicial review has been of somewhat minor importance in determining the scope of the Presidential powers. While the courts have sometimes rebuffed Presidential pretensions, they have more often labored hard to rationalize them; most of all, they have sought on one pretext or another to keep out of this dread field. For example, in Mississippi v. Johnson, the Supreme Court confessed its inability to enjoin President Johnson from exceeding his constitutional powers or to order him to perform his constitutional duties * (Rankin M. Gibson, The President's Inherent Emergency Powers, in the Federal Bar Journal, vol. XII 1951-52, pp. 107, 117-18.) See in this connection mention of Mississippi v. Johnson, infra, wherein the court's opinion is quoted. The court held that it would not enjoin the Executive or the legislative power but that the consequences of the exercise of either power would be reviewed and adjudicated.

forbidden by the Constitution or by the law. Under this interpretation of Executive power I did and caused to be done many things not previously done by the President and the heads of the Departments. I did not usurp powers, but I did greatly broaden the use of Executive power. * * * 31

In contrast, President William H. Taft expressed his views on the Presidential office in these words:

*** that a President can exercise no power which cannot fairly and reasonably be traced to some specific grant of power, or justly implied and included within such grant of power and necessary to its exercise. Such specific grants must be either in the Federal Constitution, or in any act of Congress passed in pursuance thereof. There is no undefined residuum of power which he can exercise because it seems to him to be in the public interest.32

These assessments of the Executive power are in a sense later echoes of sentiments expressed in the early days of this Nation's history. One of the outstanding incidents involving a controversy over the nature of the Executive power occurred in connection with President George Washington's so-called Proclamation of Neutrality in 1793. The 1793 controversy over Washington's Proclamation of Neutrality When France declared war against Great Britain (and Holland) in February 1793, her action precipitated a crisis of substantial proportions within the Government of the United States and among the populace of the young Nation. Anti-British feeling ran high, as did pro-French sympathies.

President Washington had two viewpoints represented strongly in his own Cabinet. Secretary of State Thomas Jefferson was antiBritish and pro-French while Alexander Hamilton was pro-British.33 President Washington was firmly determined to keep the United States neutral. So were Jefferson and Hamilton although each strongly favored a different side in the war. A fierce struggle ensued in Washington's Cabinet over whether he should issue a proclamation "*** for the purpose of preventing interferences of the citizens of the United States in the war between France and Great Britain * *" and whether the proclamation should contain a declaration Jefferson opposed the issuance of a proclamation of neutrality on two grounds-one political and the other constitutional. As a political ground he urged holding back a proclamation as a device for bargaining with the belligerents. On constitutional grounds Jefferson argued that such a declaration was a declaration of no war and in his

*

of neutrality.34

31 Quoted in Rankin M. Gibson, op. cit., p. 113. President Franklin D. Roosevelt expressed himself perhaps even more strongly along the same lines: "In the event that the Congress should fail to act, and act adequately, I shall accept the responsibility, and I will act.

"The President has the powers, under the Constitution and under congressional acts, to take measures necessary to avert a disaster which would interfere with the winning of the war.

"The responsibilities of the President in wartime to protect the Nation are very grave. This total war, with our fighting fronts all over the world, makes the use of Executive power far more essential than in any previous war.

*

"I cannot tell what powers may have to be exercised in order to win this war.

"The American people can be sure that I will use my powers with a full sense of my responsibility to the Constitution and to my country. The American people can also be sure that I shall not hesitate to use every power vested in me to accomplish the defeat of our enemies in any part of the world where our own safety demands such defeat.

"When the war is won, the powers under which I act automatically revert to the people-to whom they belong" (Rankin M. Gibson, op. cit., pp. 114-115).

32 Ibid, p. 113.

33 Charles M. Thomas, American Neutrality in 1793, A Study in Cabinet Government, New York, Columbia University Press, 1931, pp. 18-20.

34 Ibid., p. 26.