district attorneys and marshals respecting suits in which the United States are parties, as may be deemed necessary for the just responsibility of those officers, and the prompt collection of all revenues and debts due and accruing to the United States. But this section does not apply to suits for taxes, forfeitures, or penalties arising under the internal-revenue laws.40

4. The Secretary of War shall from time to time define and prescribe the kinds as well as the amount of supplies to be purchased by the Subsistence and Quartermaster Departments of the Army, and the duties and powers thereof respecting such purchases; and shall prescribe general regulations for the transportation of the articles of supply from the places of purchase to the several armies, garrisons, posts, and recruiting places, for the safe-keeping of such articles, and for the distribution of an adequate and timely supply of the same to the regimental quartermasters, and to such other officers as may by virtue of such regulations be entrusted with the same; and shall fix and make reasonable allowances for the storerent and storage necessary for the safe-keeping of all military stores and supplies.*1

5. There shall be appointed by the President, by and with the advice and consent of the Senate, a purchasing agent for the Post Office Department, who shall hold office for four years unless sooner removed by the President, and who shall receive an annual salary of four thousand dollars, give bond to the United States in such sum as the Postmaster-General may determine, and report direct to the Postmaster-General; and who shall, under such regulations, not inconsistent with existing law, as the Postmaster-General shall prescribe, and subject to his direction and control, have supervision of the purchase of all supplies for the postal service.

The purchasing agent, in making purchases . . . (requirements)."" 6. The Commissioner of Patents, subject to the approval of the Secretary of the Interior, may from time to time establish regulations, not inconsistent with law, for the conduct of proceedings in the Patent-Office.13

7. The Secretary of the Interior shall make and publish such rules and regulations as he may deem necessary and proper for the use and management of the parks, monuments, and reservations under the jurisdiction of the National Park Service, and any violations of any of the rules and regulations authorized by this Act shall be punished as provided for in section fifty of the Act entitled "An Act to codify and amend the penal laws of the United States," as amended ... (36 Stat. L. 857). . . . He may also, upon terms and conditions to be fixed by him, sell or dispose of timber in those cases where in his judgment the cutting of such timber is required in order to control the attacks of insects or diseases or otherwise conserve the scenery or the natural or historical objects in any such park, monument, or reservation. He may also provide in his discretion for the destruction of such animals and of such plant life as may be detrimental to the use of any said parks,

.. •

40 Rev. Stat. 377; cf. Rev. Stat. 379.

41 Rev. Stat. 219.

42 33 Stat. L. 440. 43 Rev. Stat. 483.

monuments, or reservations. He may also grant privileges, leases, and permits for the use of land for the accommodation of visitors in the various parks, monuments, or other reservations herein provided for, but for periods not exceeding twenty years; and no natural curiosities, wonders, or objects of interest shall be leased, rented, or granted to anyone on such terms as to interfere with the free access to them by the public; Provided however, That the Secretary of the Interior may, under such regulations and on such terms as he may prescribe, grant the privilege to graze live stock within any national park, monument, or reservation herein referred to when in his judgment such use is not detrimental to the primary purpose for which such park, monument, or reservation was created, except that this provision shall not apply, to the Yellowstone National Park.“

44 39 Stat. L. 535.

CHAPTER IX

CONSTITUTIONAL ASPECTS OF THE CONSTITUTIONAL ORDINANCE MAKING POWERS OF THE PRESIDENT

All legislative powers herein granted shall be vested in a Congress of the United States.

The Congress shall have power. . . To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

The executive power shall be vested in a President of the United States of America.

Before he enter on the execution of his office, he shall take the following oath or affirmation:-"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

The President shall be commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present

He shall take care that the laws be faithfully executed.

-CONSTITUTION OF THE UNITED STATES.

I

We have seen that the President of the United States has no powers except those delegated to him in the Constitution; and that that instrument does not delegate to him any ordinance making powers as such. The question arises, however, whether he possesses any constitutional powers of an ordinance making nature; and this requires an examination of the Constitution with a view to discovering whether any of the powers there granted to him confer, either expressly or impliedly, the right to create material law or material ordinances. In this examination we are limited by a fundamental principle with which our conclusions may not conflict.1 The Constitu

1 See above, chap. v.

tion embodies the separation of powers as the cornerstone of the national government. It vests in Congress "all legislative powers herein granted," and then proceeds to enumerate seventeen specific powers of Congress to which is added the power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested in the government of the United States, or in any department or officer thereof." Applying to these provisions the maxim of constitutional construction expressio unius est exclusio alterius, we are forced to the admission that in general the President is prima facie excluded from the exercise of any independent legislative authority, even such as, were it not for the last part of the necessary and proper' clause, he might be held to possess in order to enable him to carry out the powers which are by the Constitution vested in him. For it is expressly stated in that clause that Congress is to make laws for carrying into execution not only its own delegated powers but also those of the other departments and officers. This has not been interpreted in such a way as to make it necessary for Congress to legislate with regard to the constitutional powers of the Chief Magistrate before he can exercise them; but it clearly keeps him from legislating on the excuse that he is merely providing for the execution of his own powers.2

"One sometimes sees statements to the effect that each department has the powers of regulation which are necessary to carry out its powers (see Lieber, Remarks on the Army Regulations, p. 18). It is sometimes stated that each department has the powers which are necessarily incidental to the exercise of the powers vested in it, or necessary to protect it from encroachment by the other departments, even if such powers do not fall within the logical definition of the primary function of the department concerned (cf. Willoughby, Constitutional Law of the United States, vol. ii, sec. 743). Now it is quite true that our interpretation of the separation of powers must be realistic and in accord with common sense; and there are undoubtedly exceptions to be made to the absolute rule as stated in the text. But it seems dangerous to build these exceptions into a generalization, especially when that generalization conflicts (as do those mentioned above) with the undoubted principle that to Congress is delegated in express terms the power to provide for carrying into execution the functions of the judicial and executive departments as well as its own. This danger may be avoided by bringing

The first question for consideration is negatively what powers the President is by the separation of powers forbidden to exercise. This involves giving an interpretation of the meaning of the word "legislative" as it is employed in the Constitution; and in this interpretation we shall find the historical and contemporaneous signification important if not controlling. What did the phrase "legislative powers" connote in the minds of the men who framed and adopted the Constitution? ↑

3

5

We know that the framers were familiar with the writings of three men who were in their day leading authorities on law and political theory. Hence we may with propriety accept definitions of law and legislation which those three men held in common as being by every presumption the definitions of those terms as used in the Constitution. The men are Blackstone, Montesquieu, and Locke. The first defines municipal law as "a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong." By the term rule he means 'something permanent, uniform, and universal," as well as imperative. Montesquieu, in his "Spirit of the Laws,"" speaking of the legislative power, says: "By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abolishes those that have been already enacted." In other passages he uses such terms with refer

66

such exceptions, where possible, under some express power of the Executive. The authority to issue regulations which prescribe office hours or other very minor details of administration, even where they affect the public-flows from the fact that the Executive is an independent department. Nothing is gained, however, by trying to express such an obvious exception or limitation in general terms, which are likely to be misleading.

See above, chap iv.

The fact that the framers did not define the terms "legislative powers " and "laws "9 as used in art. 1, secs. 1 and 8, indicates that they used them in the currently accepted sense.

On evidence of their use of the theories of these three men see above, chap. v, n. 4.

Blackstone, Commentaries on the Laws of England, (Cooley's edition), Introduction, p. 38 ff.

'Pritchard's revision of Nugent's translation, Bohn's Standard Library, vol. i, passim.