CHAPTER III

THE ORDINANCE: DISTINCTIONS AND CLASSIFICATIONS

On est d'accord pour définir le règlement toute disposition par voie générale émanant d'un organe autre que le parlement, ou si l'on veut toute disposition par voie générale edictée en une forme autre que la forme législative (c'est-à-dire, vote par le parlement et promulgation par le président de la république).

-DUGUIT.1

Die Verordnungen unterscheiden sich von den Gesetzen durch die fehlende Mitwirkung der Volksvertretung.

---MEYER-ANSCHÜTZ, LEHRBUCH DES DEUTSCHEN STAATSRECHTES."

It is important to distinguish between rules issued by the head of a department for the guidance of his subordinates and the regulations of which we are speaking. The former are merely directions given to the officials for the purpose of instructing them in their duties, and are binding on no one else. The right to issue them must belong, to some extent, to every one who has persons under his orders, although they are used much more systematically in France than in the United States. The regulations with which we are concerned here are of quite a different kind, for they are binding on all citizens who may be affected by them, and have, in fact, the character of laws.

-A. LAWRENCE LOWELL.

The American conception of the term law makes no distinction between material laws and material ordinances, but includes them both. It is furthermore in accord with American ideas on government for the enactment of both sorts of rules to be left to the legislative department. Thus the Constitution of the United States in effect gives to the Congress the power to pass the necessary and proper' material ordinances as well as material laws. Congress has the power to pass acts organizing the executive departments as well as acts affecting private interests with respect to the subjects committed to its control. Both sorts of acts are technically 'laws,' and under the Constitution the law-making powers

The Governments of France, Italy, and Germany, pp. 44-45.

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of the popular assembly cannot be delegated by it to the President or to any other authority.*

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Yet, as has been indicated above, Congress may delegate through its laws' discretion as to the creation of subordinate rules. This is true whether Congress is enacting 'laws ' affecting personal and property interests of individuals, or 'laws' respecting administrative operations. Thus, in the war with Germany, the national legislative body passed the Overman Act as well as the Selective Draft Act," the Trading with the Enemy Act,' and Food and Fuel Control Acts." Each of these authorized the Chief Magistrate or subordinates acting under his general control to issue ordinances, the first with respect to departmental organization, the others with reference both to administrative practice and procedure and to private conduct.

Herein we find a practice which raises interesting and significant problems in the realms both of jurisprudence and of political theory. As long as Congress itself prescribes the appropriate material laws and ordinances in detail, the situation is in harmony with orthodox American conceptions and methods. The moment, however, that that body grants to the President power to enact material laws or material ordinances even of a subordinate character, we are faced with juristic and political issues which demand a solution. In Germany this is partly true of the delegation of power to enact material laws, but not of the delegation or constitutional possession of the power to enact material ordinances." But our ideas regarding the proper location of this latter power have differed from those of the Germans; the broad

"That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution (Field v. Clark, 143 U. S. 649).

Ibid., 273 ff, 276 ff, 1348 ff.

'For the reason, already mentioned, that material ordinances are by the Germans considered as properly emanating from the head of the administrative system.

delegation of power in the Overman Act excited opposition and discussion just as in the case of the other acts named. In fact, it excited more opposition for the reason that it was broader than the others and authorized changes in, and not mere applications of, the statutes.) There would thus seem to be ample justification for the consideration in this treatise of the power of the President to issue both material ordinances and material laws, or, in other words, for the discussion of the formal ordinances of the Executive and the problems connected with his issuance thereof. This will,

of course, include the ordinances issued under his constitutional as well as his delegated powers, and the ordinances issued by his subordinates under his supervision or responsibility in accordance with statutory authorization.

I

But

It will serve to clarify our ideas concerning the formal ordinances of the President if we distinguish ordinances from several other kinds of products, some governmental and some non-governmental, with which they might be confused. Take first uniform rules of conduct laid down by a club or some similar organization for its members. Their enforcement rests upon the pressure of opinion, social comity, and maybe even upon expulsion of members who disobey them. can it be said of them that what the state permits it commands? The expelled member could appeal to the courts of the state and secure relief where the rules or the manner of enforcing them infringed upon any material interest of his which the state sees fit to protect. If, however, he were without redress in court we could say that the state' commands' or, more aptly, grants that the club may enforce certain rules in a certain way. The rules themselves, however, are not commands of the state but of the club. The state wills to permit them, but the club wills to enforce them. They are not governmental products.10

The next class of acts is entirely different. The Execu

10 See Gray, The Nature and Sources of the Law, secs. 329-334.

tive may be permitted to issue proclamations of warning to persons who are violating or about to violate the law. President Washington issued proclamations of this sort during the Whiskey Rebellion in western Pennsylvania.11 They were clearly governmental products, but of what type? Their nature was clearly set forth by Coke in 1610 in the famous Case of Proclamations.12 The king may issue his proclamation, said Coke, to warn the subjects of what the law is, but he may not by his proclamation make that an offense which was not one before. In other words, he showed that such proclamations are not creative of law, but merely declaratory thereof. Coke and later writers after him said that such warnings" aggravated" the offense, and Professor Maitland has remarked that in England this is probably still true.13 In the United States, such proclamations of warning might or might not influence the trial court to impose the maximum legal penalty. It might be more apt to do so when (as sometimes happens) Congress specifically provides that the enforcement of the law be preceded by a proclaimed warning. It is important to add that such a warning does become an ordinance if the law has set forth rights and duties which are to come into operation only when the Executive in his sound discretion shall have so decided and have given warning to that effect by proclamation.

Presidential ordinances are issued chiefly if not solely in the form of Proclamations or Executive Orders. But these two forms are also used for Presidential acts which are not in any sense ordinances. In order to emphasize this fact, we may note that many proclamations are hortatory or declaratory and not legislative in character. A classic example is the annual Thanksgiving Proclamation.) Then again we find among the ordinance making proclamations of President Wilson an exhortation to his countrymen to support the Boy Scout movement.11

11 Richardson, Messages and Papers of the Presidents, vol. i, pp. 117, 149.

12 12 Co. Rep. 74.

13 The Constitutional History of England, p. 302.

1441 Stat. L., part 2, 1747-1748.

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Another type of official act, which may or may not be embodied in the form of a proclamation, is the formal statement of the official determination of a fact in the administration of a law. Sometimes a statute states that its provisions shall become operative only when the President has by proclamation set forth the existence of certain facts. In such a case it is not easy to draw the line between non-discretionary fact-findings and determinations which involve discretion; and thus we find administrative and ordinance making functions shading into each other. The American courts are especially prone to regard as 'fact-finding' processes which come dangerously near discretionary determinations. It is in this somewhat disingenuous manner that they justify delegation of discretionary authority to the Executive without having to modify in terms the separation of powers. An Act of Congress of May 1, 1810, provided in section 4 "that in case either Great Britain or France shall before the third day of March next, so revoke or modify her edicts, as that they shall cease to violate the neutral commerce of the United States, which fact the President of the United States shall declare by proclamation." 15 To what extent did this involve mere judgment, to what extent if any did it involve discretion? In the case of the Brig Aurora v. United States 16 the Supreme Court declared that it did not involve the delegation of legislative power to the President. Again, section 3 of the tariff act of October 1, 1890, read: "whenever and so often as the President shall be satisfied that the government of any country producing and exporting" designated articles "imposes duties or other exactions upon the agricultural or other products of the United States, which in view of the free introduction of such" articles "into the United States he may deem to be reciprocally unequal and unreasonable, he shall have the power and it shall be his duty to suspend, by proclamation to that effect, the provisions of this act relating to the free introduction of such" articles, "the production of such

15 2 Stat. L., 605, 606.

16 7 Cr. 382.