66

country, for such time as he shall deem just, and in such case and during such suspension duties shall be levied, collected and paid upon " such articles coming from such country as follows." 17 Does it involve subjective evaluation to determine whether commercial exactions of another country are "reciprocally unequal and unreasonable," and to decide how long the suspension of certain provisions of a tariff act shall continue? Yet here again, in the leading case of Field v. Clark,18 the Court called the part of the President fact-finding, except with reference to the length of time of the suspension.

Then there is the case of rulings' of administrative officers, which are technically merely their interpretations of the meaning of the law, but which are in fact of more practical importance than many ordinances having the force of law.19 For where such rulings can be brought before the judiciary, the courts will give every presumption in their favor, and in case of doubt will accept them as the true meaning of the law.20 The rule, however, is that they do not bind the courts when they are clearly in conflict with the law.21 A second reason for the practical importance of such rulings is that where no private rights are involved, or where such rights are not asserted, the administrative rulings do not come before the courts at all.22 In case they cannot be reviewed

17 26 Stat. L., 567, chap. 1244. 18 143 U. S. 649.

1966 Statutory construction is practically one of the greatest of executive powers (Taft, Our Chief Magistrate and His Powers, pp.

78-79).

20 Powell, “The Separation of Powers, II," in Political Science Quarterly, vol. xxviii, pp. 39-40 n.; Albertsworth, "Judicial Review of Administrative Action by the Federal Supreme Court," in Harvard Law Review, December, 1921.

21 Compare the following cases: Houghton v. Payne, 194 U. S. 88, 1904, and United States v. Hill, 120 U. S. 169, 1887.

92"Of course ultimately where a statute affects private right, it is likely to come before the courts in actual litigation and to put upon the courts the duty of its construction. But there are many statutes that do not affect private right in such a way that they come under the court's interpretation; and in such cases Executive interpretation is final. Even where it is not, it is very persuasive with courts who subsequently are obliged to adjudge the meaning of the statutes " (Taft, Our Chief Magistrate and His Powers, pp. 78-79).

by the courts, should we call them ordinances? Strictly speaking, no. For while in such an event they practically have the force of law, they are, after all, interpretative rather than discretionary. The mental process is different from that where the law itself gives the Executive the right to elaborate its contents or concretize its abstractions. Yet where the law is general, and perhaps somewhat inconsistent and vague, the distinction between administrative rulings as to its meaning and ordinances is almost without a difference. However, the same situation arises with reference to interpretations by the courts in the frequent cases where final determination of jurisdiction shades into discretion.23

Another sort of action to be distinguished is emergency action by the English Crown under its prerogative right of defending the realm.24 Because of such action the responsible ministers could be sued for damages at common law; and in such suits the courts would determine in each case for themselves whether the action taken was justified by the necessities of the case. If the Crown had proceeded by the method of issuing general rules, such rules would thus not be law but mere statements of policy by the Executive. The Crown would not be bound by them itself; and if it did follow them the courts could go behind the rules and determine as a matter of fact whether, aside from the rules, the act in each case was justifiable.25 Clearly such rules are different from ordinances having the force of law.

II

Having set forth the meaning of ordinance and distinguished it from several other products of the governmental

23 This is especially true where a court of appeal is testing some new departure in social or industrial legislation by the standard of a Constitutional generalization like the due process' clause (Cardozo, The Nature of the Judicial Process, p. 76 ff.). The principle of stare decisis makes such a decision practically a rule for the future.

24 James Hart, "The Emergency Ordinance: A Note on Executive Power," in Columbia Law Review, June, 1923, pp. 528, 532-533. 25 Baty and Morgan, War: Its Conduct and Legal Results, 1915, chap. i.

process, we may now classify ordinances from selected points of view. Our method will be to start with significant points of view, and, with reference to each of them, to divide all ordinances into two classes. In addition it will be expedient to make sub-classifications of one of the main classes in accordance with the same procedure.

The primary basis of distinction for the purposes of this treatise is the source of the authority by which the ordinance making official acts. In American law there are only two such sources, constitutional and statutory.26 In the federal government at least the President is the only officer who is granted ordinance making authority directly by the Constitution; the source of the ordinance making power of his subordinates is constitutional only when and in the sense that they act as agents of the Chief Executive in carrying out his constitutional functions. For the rest they must find their authorization in the statutes of Congress alone.27 The Chief Magistrate, however, exercises powers which come distinctly within the definition of ordinance making powers both by virtue of constitutional grants and by virtue of statutory delegations.

These two types of ordinances are distinguished by the French with reference to the ordinance making powers of the President of the French Republic as les décrets réglementaires spontanés and les règlements d'administration publique.28 By German authorities they are referred to as verfassungs- und gesetzmässige Verordnungen, respectively.29

Illustrations of each kind of Presidential ordinance are not far to seek. It was under his authority as commander

26 Taft, Our Chief Magistrate and His Powers, pp. 139-140; The Floyd Acceptances, 7 Wall. 666, 676.

27 The Executive Departments are created, not by the Constitution, but by statutes of Congress, the Constitution merely referring to them and their heads incidentally and in general terms (Art. ii, sec. ii).

28

Duguit, Droit constitutionnel, sec. 141; Jèze, Les principes généraux du droit administratif, deuxième édition, 1914, pp. 218

219.

* Jellinek, Gesetz und Verordnung, Zweite Abteilung, Zweiter Abschnitt, Kap. vi.

in-chief of the army that President Lincoln issued his emancipation proclamation,30 the aim of which seems to have been to produce a paralysis of production in the South if not a slave uprising behind the Confederate lines. His earlier blockade of Southern ports was also a proper exercise of the same constitutional power.31 When, however, we turn to Lincoln's proclamations suspending the writ of habeas corpus, we find that the authority for the earlier proclamations 32 was formally declared by Chief Justice Taney in Ex parte Merryman 33 to be non-existent; but that the proclamation of September 15, 1863,34 was issued under authority of an act of Congress of March 3, 1863,85 which also by a retroactive delegation ratified the previous action of the President in suspending the writ. We have here a clear case of statutory delegation. The question is no longer whether the President is given by the supreme law the power to suspend the writ, but whether Congress, in the exercise of its power in this regard, may delegate such broad discretion to the President.

Now we find that in some monarchical countries the Executive may claim ordinance making powers on grounds of inherent authority, while in England he claims them as customary or in other words under the common law.37 In both cases we may reduce the claims to a constitutional basis if we use the term constitutional in the sense not of a written document but of the body of maxims and principles by which the government is organized. But that is not the sense in which we have spoken of the ordinance making powers of the President as being sometimes under constitutional authoriza

30 12 Stat. L., 1267-1268.

81 12 Stat. L., 1259.

32 12 Stat. L., 1260; 13 Stat. L., 730. See McPherson, History of the Rebellion, pp. 177 ff; Dunning, Essays on the Civil War and Reconstruction, chap i.

33 Campbell's Rep., 246.

84 13 Stat. L., 734-735.

36 12 Stat. L., 755.

36 Cf. W. W. Willoughby, Prussian Political Philosophy, chap. v, p. 94 ff.

37 Cf. Dicey, Law of the Constitution, pp. 50-51.

tion. By that we have meant that they were sometimes delegated to the President in the text of the instrument itself. The second important criterion for the classification of ordinances is the relations which they regulate. In this respect they are by German authors divided into Rechtsverordnungen and Verwaltungsverordnungen.38 Of these classes the former comprises those ordinances which may be described as uniform rules of social conduct which the state will enforce; the latter administrative regulations, or general rules prescribing the manner in which government officials shall conduct their offices. In other words, the former includes material laws as we have defined them above, while the latter consists of material ordinances as they are herein before defined. As we have seen, formal ordinances are divisible into these two classes of material laws and material ordinances. To put the matter somewhat differently, Rechtsverordnungen undertake to regulate relations between private persons and their fellows, or between private persons and the state. such they include uniform rules of private law as well as uniform rules of criminal law, and uniform grants of privileges or franchises by the state to private individuals. On the other hand, Verwaltungsverordnungen control relations between the state and its agents in the administration of Rechtsverordnungen, or, in other terms, between the sovereign person and its governmental organs. It may be added that relations between officials and private persons and those between superior officials and their subordinates are in reality included in the above series. For in such cases the political superior' either is the mere agent or representative of state action, or else is exceeding his official capacity and acts as a mere private usurper.39

As

33 Laband, Deutsches Reichsstaatsrecht, sec. 16; Meyer-Anschütz, Lehrbuch des deutschen Staatsrechtes, 570-574. Cf. Lowell, Government of England, vol. ii, p. 363 ff.; and Governments and Parties in Continental Europe, vol. 1, pp. 43-46, 345.

39 That is to say, a relation between a private individual and an official is really a relation between such individual and the state; and, similarly, a relation between a subordinate official and his superior official is really a relation between the subordinate and