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. But 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. 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 te 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 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. 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 19 U. S. v. Symonds, 120 U. S. at pp. 49-50. 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. 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: 66 **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 |