PAGE United States vs. United Verde Copper Co., 196 U. S. 207...... 184 United States vs. Williams, 194 U. S. 279. United States vs. Wilson, 7 Pet. 150. United States ex rel. Taylor vs. Taft, 203 U. S. 461.. 184 .116, 133 Vil. of Saratoga Springs vs. Saratoga Gas Co., 191 N. Y. 123.. White vs. Berry, 171 U. S. 366. .121, 132, 139, 154 ..167, 192 Wichita R. R. & Light Co. vs. Public Utilities Commission of Kansas, 260 U. S. 48.. Wilcox vs. Jackson, 13 Pet. 498.. Williamson vs. United States, 207 U. S. 425. Wilson vs. The Mayor, 1 Denio, N. Y. 595.. Wolsey vs. Chapman, 101 U. S. 755. Yick Wo vs. Hopkins, 118 U. S. 356. .121, 132, 174 ..129, 185 184 305 129, 186 149 Nos efforts tendront à déterminer la nature juridique des règlements, les conditions de leur légalité, les sanctions qui les accompagnent, les guaranties et voies de recours qui prémunissent les citoyens contre les abus qui peuvent survenir, enfin les règles d'abrogation. -RAIGA, Le pouvoir réglementaire du Président de la République. PRESIDENT OF THE UNITED STATES PART I JURISTIC ANALYSIS CHAPTER I INTRODUCTION Few people are aware of the great extent to which public administration in the United States national government is controlled by means of administrative regulations or orders, in the nature of subordinate legislation. Important as such executive regulations have been, even in time of peace, they are of much greater importance in time of war; and during the recent emergency, regulations of this kind have been brought to the attention of many outside the circle of government officials. There are indeed, besides presidential proclamations and executive orders, many elaborate systems of executive regulations governing the transaction of business in each of the executive departments, and in the various services both within and without these departments. These include organized codes of regulations for the army, the navy, the postal service, the consular service, the customs service, the internal revenue service, the coast guard, the patent office, the pension office, the land office, the Indian service, the steamboat inspection service, the immigration and the naturalization bureaus, and the civil service rules. In addition to long established types of regulations, there have been many new series of regulations issued in recent years both before the war, and more recently by the new war agencies, such as the Food and Fuel Administration, the War Industries Board, and the War Trade Board. In addition to the systematized and codified regulations, there is perhaps an even more extensive body of more specialized rules, orders, and instructions issued by the various departments, bureaus, commissions, and local agents, knowledge of which is often limited to the persons who have to apply them and to those whom they affect. -FAIRLIE.1 2 The lawyer as well as the layman is often puzzled by the phrase ordinance making' as applied to powers of the President. He understands by the term, and rightly enough, powers of a legislative nature exercised by executive officials. Yet does not the Constitution expressly vest "all legislative 166 "Administrative Legislation," in Michigan Law Review, January, 1920, passim. Powers herein granted" in Congress? in Congress? Is it not a fundamental principle that delegata potestas non potest delegari? Has it not been taught in the books that the Chief Executive of the nation has no legislative powers? Where in contemporaneous evidence is the claim or admission by any of the fathers that the President is given such powers by the supreme law or may be given them by Congress? Do not the pages of the Supreme Court Reports contain denials of any such proposition? This is all true. Yet, despite the orthodox theory, we find a constitutional practice which is comparable in character if not in degree with that known on the continent of Europe as executive ordinance making. (What the Supreme Court has denied, moreover, is not the authority of the Chief Magistrate in respect to this practice, but merely the fact that the powers so exercised are legislative. It has preferred to call them administrative.) In thus refusing to call a spade a spade the Court has sought to allow needed flexibility in governmental arrangements without admitting that Congress can devolve its constitutional powers upon the Executive. The extent of Presidential legislation should not be exag 2 The term ordinance-making power' is used by Professor Willoughby, while President Goodnow speaks of the ordinance power' or the power of ordinance.' There are several reasons which render the term ordinance' preferable to any other term. In the first place, it is the word which is most often used by those American writers, like President Goodnow and Professor Willoughby, who through their study of the administrative law of continental Europe have come to recognize this power as a distinct category of our jurisprudence. Then, too, the corresponding power in the hands of public corporations is styled the power of ordinance, so that the proposed use of the term is but an extension of this existing use. Finally, it is historically fitting that such functions of a legislative character as are now exercised by the executive should be called by the same name as was the legislative power of the English king in the fourteenth century. In the sixteenth century it was called the power of proclamation. But a proclamation is essentially a form of promulgation, the contents of which may be legislative, as in Lincoln's emancipation proclamation, or merely declaratory or hortatory or the like. The President's annual Thanksgiving proclamation creates no legal rights and duties. The term ordinance connotes, on the other hand, both distinctive features of the thing to be defined, namely, that it is legislative in nature while it proceeds from some authority other than the regular legislative body. On this and other points in this chapter see the present writer's article on "The Ordinance Making Powers of the President," in North American Review, July, 1923. |