PART II CONSTITUTIONAL PRACTICE CHAPTER IV DELEGATED ORDINANCE MAKING IN CONSTITUTIONAL PRACTICE There are a number of such bills, and may be many more, tending to direct the most minute particle of the President's conduct. If he is to be directed, how he shall do everything, it follows he must do nothing without discretion. To what purpose, then, is the executive power lodged with the President, if he can do nothing without a law directing the mode, manner, and, of course, the thing to be done? May not the two Houses of Congress, on this principle, pass a law depriving him of all powers? You may say it will not get his approbation. But two thirds of both Houses will make it a law without him, and the Constitution is undone at once. -JOURNAL OF WILLIAM MACLAY.1 That the General Assembly doth particularly protest against the palpable and alarming infractions of the Constitution in the two late cases of the "Alien and Sedition Acts," passed at the last session of Congress; the first of which exercises a power nowhere delegated to the Federal Government, and which by uniting legislative and judicial powers to those of (the) executive, subvert the general principles of free government, as well as the particular organization and positive provisions of the Federal Constitution. . . .... -VIRGINIA RESOLUTIONS (1798)." No one can be more deeply impressed than I am with the soundness of the doctrine which restrains and limits, by specific provisions, executive discretion as far as it can be done consistently with the preservation of its constitutional character.... The duty of the Legislature to define, by clear and positive enactments, the nature and extent of the action which it belongs to the executive 1 1 Page 109; cf. p. 103. MacDonald, Select Documents Illustrative of the History of the United States, 1776-1861, pp. 156-157; cf. the Kentucky Resolutions (1798), ibid., pp. 151-162: VI. Resolved, that the imprisonment of a person under the protection of the laws of this Commonwealth on his failure to obey the simple order of the President to depart out of the United States, as is undertaken by the said act entitled "An act concerning aliens," is contrary to the Constitution, one amendment to which has provided, that no person shall be deprived of liberty without due process of law." ... to superintend springs out of a policy analogous to that which enjoins upon all the branches of the Federal Government an abstinence from the exercise of powers not clearly granted. -ANDREW JACKSON. The perennial struggle of American administrative law with nineteenth-century constitutional formulations of Aristotle's [sic] threefold classification of governmental power, the stone wall of natural rights against which attempts to put an end to private war in industrial disputes thus far have dashed in vain, and the notion of a logically derivable super-constitution of which actual written constitutions are faint and imperfect reflections, which has been a clog upon social legislation for a generation, bear daily witness how thoroughly the philosophical legal thinking of the past is a force in the administration of justice of the present. -POUND." The Interstate Commerce Commission was authorized to exercise powers the conferring of which by Congress would have been, perhaps, thought in the earlier years of the Republic to violate the rule that no legislative power can be delegated. But the inevitable progress and exigencies of government and the utter inability of Congress to give the time and attention indispensable to the exercise of these powers in detail forced the modification of the rule. Similar necessity caused Congress to create other bodies with analogous relations to the existing legislative, executive, and judicial machinery of the Federal government, and these in due course came under the examination of this court. Here was a new field of administrative law which needed a knowledge of government and an experienced understanding of our institutions safely to define and declare. The pioneer work of Chief Justice White in this field entitles him to the gratitude of his countrymen. -MB. CHIEF JUSTICE TAFT." We turn now to a sketch of delegation in practice. We shall not present a complete history of Presidential ordinance making, but shall merely cite typical illustrations of delegated ordinance making powers at different periods. There are discernible six broad periods in the history of the delegation of legislative powers to the President. (1) The first extended from 1789 to 1815. In it Congress granted to the Chief Executive little discretionary power except in connection with one great problem, namely, the protection of the neutral commerce of the United States from French decrees and English orders in council. In that connection, however, Seventh Annual Message, December 7, 1835 (Richardson, Messages and Papers of the Presidents, vol. ii, pp. 1386-1837). Introduction to the Philosophy of Law, pp. 15-16. 259 U. S., Appendix. there were numerous delegations which were important, especially as setting precedents for the practice in later times. (2) The second period stretched from the close of the second war with England in 1815 to the outbreak of the War of Secession in 1861. During that era there were scattered delegations, but they were not frequent, nor were they connected with any one problem like those of the preceding period. (3) Then came the period of the War and Reconstruction, from 1861 to about 1875, when in connection with the political issues of the day Congress delegated rule-making powers of great importance to the Chief Magistrate. (4) Again there was a long stretch of time, from 1875, or earlier, to 1917, when delegations did not center as in the times of emergency around any central problem. However, in the second half of this period, beginnings of federal government by commission took place; while it is probable that the ordinary delegations to the President and heads of departments increased, both in numbers and scope. (5) In the brief war period of 1917-1918 Congress delegated to President Wilson powers more extensive and in greater numbers than in any similar length of time, or in fact at any other time in our history. (6) Finally, with 1919 began the period upon which we are now entering, when government by commission and Presidential legislation will in all likelihood both be greatly expanded. This is partly because of the example of the practice in the recent war, partly because of the fact that the causes that have produced co-legislation in the past may be expected to appear in intensified form in the future. It is significant that two of the three periods when the delegated ordinance making powers of the President really loomed large were periods of actual warfare and that the other was an era of commercial war. The international aspects of the problems were dominant in the first and third of these periods, while in the second the unity of the nation was at stake. In the world war, however, internal problems were important for the reason that a whole nation had to be organized for industrial as well as military warfare. Examples of delegations of these three periods will be in point; while for the rest we shall give typical delegations of various sorts, and shall in particular enumerate some of the delegations of the early years of our constitutional history, because of their bearing upon constitutional construction. Exhaustive catalogues will not be undertaken, although these might prove much. I 1. Because of their significance for constitutional construction the delegations of discretionary power to President Washington may be set forth in full. In this list we shall include delegations of power involving the issuance of sublegislative and sub-ordinance making orders as well as ordinances. Perhaps a few instances are omitted. The President was authorized to decide upon a site for a lighthouse near the entrance of Chesapeake Bay. Various appropriation acts authorized him to borrow money not to exceed specified sums. Examples are cited in the footnotes." The acts relating to the army and the militia granted discretionary power to the President. The Chief Executive was empowered to draw not over forty thousand dollars for foreign intercourse, with specifications of maximum salaries for negotiations. To this a two year limit was set." The Chief Magistrate was authorized to direct the surveying and 7 1 Stat. L. 54. Nearly every appropriation act authorized the President to borrow; various other acts also (such as those relating to the public debt or foreign relations) authorized him to borrow money not to exceed specified sums (see Sess. 2, ch. 4, sec. 7, 1790; Sess. 2, ch. 34, sec. 2, 1790; Sess. 2, ch. 47, sec. 4, 1790; Sess. 3, ch. 16, 1791; Sess. 1, ch. 27, sec. 16, 1792; Sess. 1, ch. 42, sec. 3, 1792; Sess. 2, ch. 18, sec. 3, 1793; Sess. 1, chs. 7 and 8, 1794; Sess. 1, ch. 63, sec. 2, 1794; Sess. 2, ch. 4, 1794; Sess. 2, ch. 33, 1795; Sess. 2, ch. 46, sec. 6, 1795; Sess. 1, ch. 21, sec. 1, 1796; Sess. 1, ch. 41, 1796; Sess. 1, ch. 51, sec. 3, 1796; Sess. 2, ch. 12, 1797; Sess. 2, ch. 23, 1797). All of the acts relating to the army and the militia granted discretionary power to the President (see 1st Cong., sess. 1, ch. 26, 1789; 1st Cong., sess. 2, ch. 10, 1790; 1st Cong., sess. 3, ch. 28, 1791; 2nd Cong., sess. 1, ch. 9, 1792; 2nd Cong., ch. 28, 1792; 3rd Cong., sess. 1, ch. 9, 1794, also ch. 14; 3rd Cong., sess. 1, chs. 25 and 27, 1794; 3rd Cong., sess. 2, ch. 1, 1794; 3rd Cong., sess. 2, ch. 36, 1795; 3rd Cong., sess. 2, ch. 44, 1795; 4th Cong., sess. 1, ch. 39, 1796). 1 Stat. L. 128. building plans in connection with the establishment of the seat of government.10 He was given discretion in regulating the issuance of licenses to trade with the Indians or in allowing trade without license respecting tribes surrounded by citizens of the United States.11 In another act we find the clause: "And the President is moreover further authorized to cause to be made such other contracts respecting the said debt as shall be found for the interest of the said States." "12 Again, he was given authority to have built revenue cutters not to exceed ten, the expense not to exceed ten thousand dollars.15 13 Such were the delegations of the first two years of our constitutional history. Congress declared that the President's loan in Holland netting only one-half of one per cent interest, the legality of which under Congressional authorization of the debt had been questioned, came within the true intent of the law, as should future loans.14 In a joint resolution the President was granted power to engage "artists" to establish a mint, to stipulate the terms and conditions of their services, and to cause the necessary apparatus to be procured.15 He was authorized to have provided and put in proper condition for the mint such buildings as he deemed requisite in such manner as he saw fit.16 He was empowered to select a site suitable for a lighthouse on Montauk Point, New York, and to approve of the plans of the secretary of the treasury for the building and furnishing of the same.17 The President was empowered to allow annual salaries to consuls sent to states on the Barbary coast, the salary of each consul not to exceed two thousand dollars, and that for only one consul to each state on that coast.18 He was authorized to appoint such place as he might deem expedient |