which vested the President with political powers regarding foreign relations was, in the main, accepted, but to curb possible autocratic exercises of power by the President, the Senate was given a veto on treaties, while the power to declare war was left with Congress. The powers finally delegated to the President, and included in Article II of the Constitution as finally drafted by Gouverneur Morris, are mostly in the diplomatic fields.

The powers of domestic administration which we now regard as the essential executive powers were not within the power of either the colonial governor or the British monarch in the eighteenth century and it was not intended that they should be within the President's discretionary control. The fathers intended that these powers should be exercised by officers largely under the detailed control of Congress and in the early acts organizing departments of government this plan was carried out.

"In the United States," says Willoughby, "it was undoubtedly intended that the President should be little more than a political chief; that is to say, one whose functions should in the main consist in the performance of those political duties which are not subject to judicial control. It is quite clear that it was intended that he should not, except as to these political matters, be the administrative head of the government, with general power of directing and controlling the acts of subordinate administrative agents.” 35

Later, through the use of the implied or perhaps inherent power of the President to remove officers, and by a wide interpretation of the clause requiring the President "to take care that the laws be faithfully executed," originally indicating supervision rather than direction, the administrative powers of the President increased. At the same time the term "executive power" changed in meaning

a tyrannical manner. There was an analogy between the Executive and Judiciary departments in several respects. The latter executed the laws in certain cases as the former did in others. The former expounded and applied them for certain purposes as the latter did for others. The difference beween them seemed to consist chiefly in two circumstances-1. The collective interest and security were much more in the power belonging to the Executive than to the Judiciary department. 2. In the administration of the former much greater latitude is left to opinion and discretion than in the administration of the latter." Madison, Farrand, op. cit., 2: 34.

35 Willoughby, op. cit., p. 1156. See also Goodnow, op. cit.,

P. 78.

and although it still included the notion of political functions, its primary association was with the new administrative functions.

Thus when the constitutional convention gave "executive power" to the President, the foreign relations power was the essential element in the grant, but they carefully protected this power from abuse by provisions for senatorial or congressional veto. This power ought to be distinguished from the power of the President as head of the administration which he exercises independently within the limits of congressional legislation and which by present usage forms the essential element in "executive power."

Whether consideration is given to the works of theoretical writers known to the fathers, the precedents of England, the colonies or the Confederation, or the discussion of the Federal convention itself, we may conclude that The Federalist expressed the opinion of the constitutional convention as to the nature of the foreign relations power, so far as they had an opinion on that subject, when with prevision of the later significance of the term "executive power" it classified the treaty power as a fourth department of government;

36

"The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the execution of the laws and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate. The power of making treaties is plainly neither the one nor the other. It relates neither to the execution of the subsisting laws nor to the enaction of new ones, and still less to an exertion of the common strength. Its objects are contracts with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by sovereign to the subject, but agreements between sovereign and sovereign. The power in question seems, therefore, to form a distinct department, and to belong, properly, neither to the legislative nor to the executive. The qualities elsewhere detailed as indispensable in the management of foreign negotiations point out the Executive as the most fit agent in those transactions; while the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the office of making them."

36 The Federalist, No. 75 (Hamilton), Ford ed., p. 500. Hamilton later shifted to a defense of the wholly executive nature of the foreign relations power. Supra, sec. 76.

86. A Fourth Department. Functional Classification.

Functionally it would seem that the foreign relations power, which both frames and carries out foreign policies, both contracts and meets international responsibilities, is essentially different from either the legislative power, which frames domestic laws and policies, or the executive power which administers domestic laws and policies. According to the terminology of Professors Goodnow 37 and other writers on administrative law the conduct of foreign relations involves both "politics" and "administration" in external affairs and is distinct from either "politics" or "administration" in internal affairs.

87. A Fourth Department. Practice.

In practice the control of foreign relations has differed from the control of either legislation or domestic administration. While the President has suggested legislation in messages to Congress he has not as a rule taken a position of active leadership in the formulation of domestic policy. The initiative has been with the committees of Congress and the President's discretion has been closely limited by law enforceable in the courts. It is true the President controls administrative officials through his removal power. He instructs officials as to the method of executing the laws under authority given him by Congress and sometimes he even supplements legislation by instructions or regulations of a general character not specifically authorized. 38 But he must always act within the confines of an ever-increasing mass of congressional legislation. Congress has described the powers of officials and the methods of administration in considerable detail and the President, or rather his subordinates, are forced by the courts to observe such legislation. As legislation of this character increases in mass and detail, and as the practices and methods of permanent services become fixed by tradition as well as law, the President's discretion as head of the administration becomes reduced. His functions in this capacity tend to assume a purely supervisory and ministerial character.

37 Goodnow, op. cit., p. 666, and Willoughby, op. cit., p. 1156.

38 Goodnow, op. cit., pp. 47, 75.

In foreign relations, however, the President exercises discretion, both as to the means and as to the ends of policy. He exercises a discretion, very little limited by directory laws, in the method of carrying out foreign policy. He has moved the navy and the marines at will all over the world. He has exercised a broad discretion in issuing both standing regulations and instructions and special instructions for the diplomatic, consular, military and naval services. Though Congress has legislated on broad lines for the conduct of these services it has descended to much less detail than in the case of services operative in the territory of the United States. In the foreign affairs the President, also, has a constitutional discretion as the representative organ and as commander-in-chief which cannot be taken away by Congress and because of the exterritorial character of most of his action, his subordinates are not generally subject to judicial control.

But more than this he has initiated foreign policies, even those leading to treaties and those leading to war, and has generally actively pushed these policies when the cooperation of other organs of government is necessary for their carrying out. Though Congress may by resolution suggest policies its resolutions are not mandatory and the President has on occasion ignored them. Ultimately, however, his power is limited by the possibility of a veto upon matured policies, by the Senate in the case of treaties, by Congress in the case of war. This contrast between the domestic and foreign powers of the President is thus emphasized by Rawle : 39

"On a full view of the powers and duties of the President, the reader will probably perceive that they are of more importance in respect to foreign relations than the internal administration of government.

"At home, his path though dignified, is narrow. In the tranquility which we have hitherto in time of peace enjoyed, little more has been requisite, in either his legislative or executive functions than regularly to pursue the plain mandates of laws, and the certain text of the constitution. . . .

"But it is in respect to external relations; to transactions with foreign nations, and the events arising from them, that the President has an arduous task. Here he must chiefly act on his own independent judgment."

88. The Foreign Relations Department. Conclusion.

In foreign affairs, therefore, the controlling force is the reverse

39 Rawle, A View of the Constitution, Philadelphia, 1825, pp. 182-183.

of that in domestic legislation. The initiation and development of details is with the President, checked only by the veto of the Senate or Congress upon completed proposals. In domestic legislation on the other hand, the initiative and drafting of details is with Congress, checked by the President's limited veto upon completed bills. In practice it seems possible to distinguish four great departments of government, not only according to their functions, but also according to their organization and methods. The legislative power is vested in Congress with a limited presidential veto. The foreign relations power is vested in the President with an absolute senatorial or congressional veto. The executive power is vested in the President acting independently within the limits of detailed congressional legislation defining the power and procedure of administrative officials. The judicial power is vested in the courts acting independently within the narrowly defined limits of procedure and jurisdiction defined by the common law and congressional legislation.