formed ministerial, the performance of the act is judicially enforceable. A writ of mandamus may be issued in such circumstances by the judiciary commanding the official to perform the act required by law. Other remedies must be invoked where the act to be performed is discretionary, 15

The relationship of the head of a department and the President in such circumstances was discussed at length by the Supreme Court in Kendall v. U. S. (12 Peters 524, 610-613; 1838):

We shall not, therefore, enter into any particular examination of the line to be drawn between the powers of the executive and judicial departments of the government. The theory of the constitution undoubtedly is, that the great powers of the government are divided into separate departments; and so far as these powers are derived from the constitution, the departments may be regarded as independent of each other. But beyond that, all are subject to regulations by law, touching the discharge of the duties required to be performed.

The executive power is vested in a Fresident; and as far as his powers are derived from the constitution, he is beyond the reach of any other department, except in the mode prescribed by the constitution through the impeaching power. But it by no means follows, that every officer in every branch of that department is under the exclusive direction of the President. Such a principle, we apprehend, is not, and certainly cannot be claimed by the President.

There are certain political duties imposed upon many officers in the executive department, the discharge of which is under the direction of the President. But it would be an alarming doctrine, that congress cannot impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the constitution; and in such cases, the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the President. And this is emphatically the case, where the duty enjoined is of a mere ministerial character.

It was urged at the bar, that the postmaster general was alone subject to the direction and control of the President, with respect to the execution of the duty imposed upon him by this law; and this right of the President is claimed, as growing out of the obligation imposed upon him by the constitution, to take care that the laws be faithfully executed. This is a doctrine that cannot receive the sanction of this court. It would be vesting in the President a dispensing power, which has no countenance for its support in any part of the constitution; and is asserting a principle, which, if carried out in its results, to all cases falling within it, would be clothing the President with a power entirely to control the legislation of congress, and paralyze the administration of justice.

To contend that the obligation imposed on the President to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible. But although the argument necessarily leads to such a result, we do not perceive from the case that any such power has been claimed by the President.

The President has a method of controlling the discretionary acts of heads of executive departments. He may remove officers performing purely executive functions and Congress cannot interpose restrictions

15 Dunlap v. U. S., 173 U. S. 65, 76; 1898:

"If the duty of the Secretary to prescribe regulations was merely ministerial, and a mandamus could, under the circumstances, have issued to compel him to discharge it, would not the judgment at which he arrived, the action which he took, and his reference of the matter to Congress, have furnished a complete defence? But it is insisted that by reason of the exercise of discretionary power necessarily involved in prescribing regulations as contemplated, the Secretary could not have been thus compelled to act. We think the argument entitled to great weight, and that it demonstrates the intention of Congress to leave the entire matter to the Treasury Department to ascertain what would be needed in order to carry the section into effect. Nothing could have been further from the mind of Congress than that repayment must be made on the unregulated use of alcohol in the arts, if in the judgment of the Department, as the matter stood, such use could not be regulated."

U. S. ex rel. Dunlap v. Black, 128 U. S. 40, 48; 1888:

"The principle of law deducible from these two cases is not difficult to enounce. 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 mere 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."

on the President's removal power, 16 except in the case of officers performing quasi-legislative or quasi-judicial functions." Nevertheless, as indicated in the Kendall case above, the President cannot legally force the heads of departments to disregard the statutes of Congress. The relationship between the President, the heads of departments, and the Congress has been summed up in this manner by one authority.

But not only is it the moral duty of President and heads of departments to obey the laws. For the latter, though, not to be sure, for the former, it is a legal duty which is enforceable in the courts by mandamus, provided the act to be performed is ministerial in character. The duty was actually enforced against the postmaster general in Kendall v. U. S.

How then shall we reconcile the opinion of Cushing, and the fact that through the power of removal the President has in practice a power of control, with the decision in the Kendall case? In the first place, that decision renders too broad the declaration of the attorney general that "no Head of Department can lawfully perform an official act against the will of the President." For the fact that the President ordered the postmaster general not to perform the ministerial act in question would not affect the power of the court to compel by mandamus the performance of such act if it were positively commanded by statute.

The real distinction is between a mandatory duty to perform a nondiscretionary act and the permissive power to perform a discretionary act. The latter of course includes the discretionary formulation of a uniform rule creating rights and duties. The former is a duty over the performance of which the President has no control, because, while he can remove an officer who performs or threatens to perform it, the actual performance will, in a proper case, be compelled by the courts. But discretion by its very nature involves, as we have seen, a choice of alternatives. If and when Congress sees fit to delegate to the head of a department a discretionary power, this means that that body leaves to such officer a choice; and since there is no judicial means of compelling the exercise of such a choice, it means further that Congress not only delegates a choice as to the content of the rule, but also makes it at the most a moral duty to exercise the choice at all. For where there is no means of enforcement there is no legal duty. And, by the same token, whether the power of removal be derived from the Constitution in such a manner as to be beyond the control of Congress or not, so long as the supreme law or the statutory law allows to the Chief Magistrate a power of removal, it allows to him, within certain limits, not only a practical, but also a legal, power of "administrative control" over acts of department heads which involve a choice. Those limits are set by the extent to which the courts can, in the several forms of action at law or in equity, control abuse of power, or fraud, or excess of jurisdiction, or "vice of form," in the exercise of discretion, or by mandamus compel its exercise in some manner. Within those limits the fact that the law allows the President a method of control must be deemed to constitute a recognition of his legal right to control. In this manner it comes about that not only may the President, in most cases, allow the heads of departments to issue his ordinances for him, but conversely he may control the performance by them of their own ordinance making powers. Congress may specify that he or the head of the proper department must perform the act. But, after all, that requirement, while it may be necessary to follow it to make the act valid, is reducible to a matter of form. In all cases the act is the act

of the President in contemplation of law; while it is jointly the act of the President and the head of the department if the latter formally participates. Any legal consequences fall upon the President in all cases, and upon the subordinate in the latter class of cases. ***18

16 Myers v. U. S., 272 U. S. 52.

17 Rathbun v. U. S., 295 U. S. 602 (1935).

18 Hart, op. cit., pp. 190-193. For a brief but incisive summary of some of the basic problems being treated here see also a memorandum prepared by Eli E. Nobleman for the Senate Committee on Expenditures in the Executive Departments (that committee's Staff Memorandum No. 82-1-60, November 29, 1951). The following excerpt from the memorandum is particularly pertinent:

"Although the President's general direction power is constitutional in its source, it is by no means absolute. On the contrary, all authorities agree that its exercise is subject to important limitations. Foremost among these is the well-settled rule that an Executive order, or any other Executive action, whether by formal order or by regulation, cannot contravene an act of Congress which is constitutional. Thus, when an Executive order collides with a statute which is enacted pursuant to the constitutional authority of the Congress, the statute will prevail. This rule, in turn, gives rise to a further limitation which finds its source in the power of the Congress to set forth specifically the duties of various officers and employees of the executive branch. Since t.ie President can control only those duties of his subordinates which are discretionary, to the extent that the Congress prescribes these duties in detail, these officials can exercise no discretion and their actions cannot be controlled by the President. In other words, if the Congress enacts a statute which is constitutionally within its authority, the President cannot lawfully, either by Executive order, regulation, or any other means, direct his subordinates to disobey that statute, regardless of whether it affects third persons or whether it is only a directive concerning the management of the executive branch of the Government.

Neither the President, nor a department head at the President's: direction or with his approval, has authority to act at variance with valid statutory provisions. The courts will strike down the legal effect orders which contravene the provisions of a statute or of the Constitution.

This is true even in an area where the President has a special constitutional status, such as Commander in Chief. In the leading case of U. S. v. Symonds (120 U. S. 46; 1886) the validity of an order issued by the Secretary of the Navy was challenged. The order was held to be invalid as contravening a statute governing the allowance of pay for sea duty even though the order purported to declare a state of events under the statute. The Supreme Court looked into the facts and struck down the effect of the Secretary's order:

Assuming that the first clause of that regulation contemplates services at sea under the orders of the Department, in a vessel employed with authority of law, it is clear that all the different kinds of services described therein are services performed at sea in the meaning of sec. 1556. But they are to be deemed such, not because the Secretary of the Navy has announced that the Department will so regard them, but because they are, in fact, services performed at sea, and not on shore. If the regulations of 1876 had not recognized services "on board a practice ship at sea" as sea services, the argument in behalf of the government would imply that they could not be regarded by the courts, or by the proper accounting officers, as sea services; in other words, that the Secretary of the Navy could fix, by order, and conclusively, what was and what was not sea service. But Congress certainly did not intend to confer authority upon the Secretary of the Navy to diminish an officer's compensation, as established by law, by declaring that to be shore service which was, in fact, sea service, or to increase his compensation by declaring that to be sea service which was, in fact, shore service. The authority of the Secretary to issue orders, regulations, and instructions, with the approval of the President in reference to matters connected with the naval establishment, is subject to the condition, necessarily implied, that they must be consistent with the statutes which have been enacted by Congress in reference to the Navy. He may, with the approval of the President, establish regulations in execution of, or supplementary to, but not in conflict with, the statutes defining his powers or conferring rights upon others. The contrary has never been held by this court. What we now say is entirely consistent with Gratiot v. U. S. 4 How. 80, and Ex parte Reed, 100 U. S. 13, upon which the government relies. Referring in the first case to certain army regulations, and in the other to certain navy regulations, which had been approved by Congress, the court observed that they had the force of law. See also Smith v. Whitney, 116 U. S. 181. In neither case, however, was it held that such regulations, when in conflict with the acts of Congress, could be upheld. If the services of Symonds were, in the meaning of the statute, performed "at sea," his right to the compensation established by law for sea service is as absolute as is the right of any other officer to his salary as established by law *** 19

In another leading case (Little et al v. Barreme et al, 2 Cranch 170; 1804) the commander of an American frigate was being sued for damages for illegal seizure of a Danish ship sailing from a French port. The nonintercourse act of 1799 prohibited traffic of United States vessels to French ports and authorized the President to instruct United States naval commanders to seize any vessel bound or sailing to any French port. American commanders received instructions together with a copy of the act of Congress transmitted by the Secretary of the Navy as * the command of the President ***" These instructions seemed to authorize seizure of vessels bound to or from a French port.

66* *

Sir-Herewith you will receive an act of Congress further to suspend the commercial intercourse between the United States and France, and the dependencies thereof, the whole of which requires your attention. But it is the command of the

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.2

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 Ĉourt:

*** 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."