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The executive power, 1.

Term of office, 2.

CHAPTER 1.

THE PRESIDENT.

Succession of Vice President, 3.
Succession of cabinet officers, 4.
Restrictions, 5.

Commander in Chief, 6.

Advice of cabinet officers, 7.

Pardoning power, 8.
Treaties, 9.

Appointment of officers, 10.

Recess appointments, 11.
Commissions, 12.

Threats against the President, 13.

1. The executive power. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, * * Art. II, sec. 1, Constitution of the United States.

Notes of Decisions.

Nature and extent of executive power in general. The executive power is vested in the President, and so far as his powers are derived from the Constitution he is beyond the right of any other department except in the mode prescribed by the Constitution through the impeaching power. Kendall v. U. S. (1838), 12 Pet. 524, 610, 9 L. Ed. 1181; Marbury v. Madison (1803), 1 Cranch, 137, 166.

The President can use his power only in the manner prescribed by Congress. (1860) 9 Op. Atty. Gen. 517.

Departments of government. In general, and except at certain points where they necessarily touch each other, the three great departments of the Government move apart, each in its orbit. (1854) 6 Op. Atty. Gen. 326, 344, citing Martin v. Hunter (1816), 1 Wheaton 304, 329.

The theory of the Constitution is that the powers of the Government are divided into separate departments, and so far as these powers are derived from the Constitution the departments may be regarded as independent of each other, but beyond that all are subject to regulations by law touching the discharge of duties required to be performed. Kendall v. U. S. (1838), 12 Pet.

524, 610, 9 L. Ed. 1181.

Status and operation of executive departments. The President speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties. Wilcox v. Jackson (1839), 13 Pet. 498, 513, 10 L. Ed. 264; U. S. v. Eliason (1842), 41 U. S. (16) Pet.) 291; Williams v. U. S. (1843), 42 U. S. (1 How.) 290; U. S. v. Jones (1855). 18 How. 92; (1863) 10 Op. Atty. Gen. 527;

U. S. v. Hay (1902), 20 App. D. C. 576.

The official acts of the heads of the executive departments promulgated in the regular course of business are presumptively the acts of the President. U. S. v. Farden (1878), 99 U. S. 10, 19; Wolsey v. Chapman (1879), 101 U. S. 755; Runkle v. U. S. (1887), 122 U. S. 543, 577; McElrath v. U. S. (1876), 12 Ct. Cl. 201; Belt v. U. S. (1879), 15 Ct. Cl. 92, 107.

The duty of the President of the United States, in general, requires his superintendence of the administration; yet he can not be required to become the administrative officer of every department and bureau, or to perform in person the numerous details incident to services, which, nevertheless, he is, in a correct sense, by the Constitution and laws, required and expected to perform. Williams v. U. S. (1843), 42 U. S. (1 How.) 290, 11 L. Ed. 135.

The President, in the exercise of his executive power, may act through the head of the appropriate department, and the heads of departments are his authorized assistants in the performance of his executive duties, and their official acts promulgated in the regular course of business are prePerovich sumptively his acts. v. Perry (1909), 167 Fed. 789, 93 C. C. A. 209. The President may act through the head of a department; and the acts of the head of a department are to be deemed the acts of the President, except where he must act judicially. Truitt v. U. S. (1903), 38 Ct. CI. 398.

For an exposition of the Constitution of the office of Attorney General as a branch of the executive administration, see (1854) 6 Op. Atty. Gen. 326.

By the explicit and emphatic language of the Constitution, the executive power is vested in the President of the United States. In the perception, however, of the fact that the actual administration of all executive power can not be performed personally by one man, that this would be physically impossible, and that, if it were attempted by the President, the utmost ability of that one man would be consumed in official details instead of being left free to the duty of general direction and supervision, in the perception of this fact, the Constitution provides for the subdivision of executive powers, vested in the President, among administrative departments, using that term in its narrower and ordinary sense. What those "executive departments" shall be, either in number or functions, the Constitution does not say, any further than to determine that certain appointments may be made by their "heads," respectively, and that the President may require in writing the advice of any such "head" or "principal officer in each of the executive departments," for which reason those officers are sometimes characterized, and not improperly, as "constitutional advisers" of the President. (1855) 7 Op. Atty. Gen. 453, 460.

To constitute the "executive departments," through the instrumentality of which, in part, the President was to administer government, became one of the earliest objects of the first constitutional Congress; and we must look to its acts for knowledge of the administrative system, which, in its great outlines, the statesmen of the constitutional era established as it exists at this day. Id.

Many things may be done by the head of an executive department without the actual signature of the President, which, when done, are his acts; but in such case the documents should declare it to be the act of the President performed by the head of the department as his representative. (1898) 22 Op. Atty. Gen. 82.

Relation of executive to judicial department in general.-The relation of the executive to the judicial department stated in an opinion by Washington, J. Lockington v. Smith (C. C. 1817), Fed. Cas. No. 8,448.

The power of the President of the United States is independent of the judiciary in all duties imposed on him by law which are of a political and executive character. Guthrle v. Hall (1891), 34 Pac. 380, 1 Okl. 454. Encroachment on executive by judiciary.The courts can not rightfully interfere with executive action in any case where an executive officer is authorized to exercise judgment or discretion in the performance of an official act. Decatur v. Paulding (1840), 14 Pet. 497, 514, 10 L. Ed. 559; Taylor v.

Kercheval (C. C. 1897), 82 Fed. 497; Dudley v. James (C. C. 1897), 83 Fed. 345.

While the head of a governmental department is not subject to mandamus or injunction in any matter involving the exercise of discretion, these writs may yet be issued against him in relation to matters wherein he performs a mere ministerial duty, or is without power to act at all. Marbury v. Madison (1803), 5 U. S. (1 Cranch) 137, 2 L. Ed. 60; Noble v. Union River Logging R. Co. (1892), 147 U. S. 165, 13 Sup. Ct. 271, 37 L. Ed. 123, affirming (1892) 20 D. C. 555.

The courts have no power to compel, by mandamus, an executive officer to perform an act which is discretionary with him. U. S. v. Seaman (1854), 58 U. S. (17 How.) 225, 15 L. Ed. 226; Gaines v. Thompson (1868), 74 U. S. (7 Wall.) 347, 19 L. Ed. 62; Browning v. McGarrahan (1869), 76 U. S. (9 Wall.) 298, 19 L. Ed. 579; U. S. v. Black (1888), 128 U. S. 40, 9 Sup. Ct. 12, 32 L. Ed. 354.

The President of the United States can not be restrained by injunction from carrying into effect an unconstitutional act of Congress, nor will a bill for that purpose be received by the Supreme Court, whether the President is described by his official title or simply as a citizen of a State. Mississippi v. Johnson (1866), 71 U. S (4 Wall.) 475, 18 L. Ed. 437.

The courts may compel an executive officer to perform a mere ministerial act. U. S. v. Schurz (1880), 102 U. S. 378, 26 L. Ed. 167. But the courts have no authority to enjoin Federal officers against performing any merely ministerial act. McElrath v. McIntosh (C. C. 1848), Fed. Cas. No. 8,781.

Mandamus will not lle to compel a public officer to do a particular thing which his superior in authority has lawfully ordered him not to do. Butterworth v. U. S. (1884), 112 U. S. 50, 5 Sup. Ct. 25, 28 L. Ed. 656.

While the head of a governmental department is not subject to mandamus or injunction in matters involving the exercise of discretion, yet such writ may be issued against the Secretary of the Interior, where he attempts, without authority of law, to annul the action of his predecessor in office, approving the location of a railroad's right of way over public lands. Noble v. Union River Logging R. Co. (1893), 147, U. S. 165, 13 Sup. Ct. 271, 37 L. Ed. 123.

The executive power can not be revised and corrected by the judicial. Astrom v. Hammond (C. C. 1842), Fed. Cas. No. 596.

Equity courts have no jurisdiction or authority to enforce rules promulgated by the President placing office deputies in the marshal's office in the classified civil serv

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ice. Taylor v. Kercheval (C. C. 1897), 82 Fed. 497.

The validity of the title of the United States to land purchased and occupied by it as a military fort, and the identification and definite boundaries of the land, are matters within the scope of the powers and duties of the executive department of the Government to determine, and not subject to judicial scrutiny on the trial of a criminal case. U. S. v. Holt (C. C. 1909), 168 Fed. 141; judgment affirmed, Holt v. U. S. (1910), 31 Sup. Ct. 2, 218 U. S. 245, 54 L. Ed. 1021, 20 Ann. Cas. 1138.

The judiciary has no power by mandamus or otherwise to compel the Secretary of State or the President through the Secretary of State to present and urge a claim of a citizen of this country against a foreign government to redress a wrong committed against him in such foreign country; the duty of righting such a wrong being a political one appertaining to the executive and legislative departments of the Government. U. S. v. Hay (1902), 20 App. D. C. 576.

Encroachment on executive by legislative power. The proviso to appropriation act 1870 (16 Stat. 235) contains but a single provision which distinctively appertains to the Supreme Court. Throughout its entire scope it relates to the administration of justice in the judicial department of the Government, and its provisions relate to, affect, and in part nullify the official acts of the Executive. Therefore it was within the proper judicial province of the Supreme Court to hold in Klein's Case, 7 Ct. Cl. 240, that the entire act was unconstitutional, because it interferes with the constitutional functions of the judiciary and infringes upon the constitutional power of the Executive. 393.

Witkowski v. U. S. (1871), 7 Ct. Cl.

Act of June 18, 1878 (20 Stat. 144), directed the distribution of a fund paid by Mexico to the United States under a decree and judgment awarded by a commission, as provided by the treaty with Mexico of 1868, on a claim by citizens of the United States against Mexico, but authorized the President to investigate any charges of fraud presented by the Mexican Government in respect to such claim, and if, in the opinion of the President, the honor of the United States, the principles of public law, or considerations of justice and equity, require that the award in the case should be opened, and the case retried, it should be lawful to withhold payment of the award to claimant until such case should be retried, and decided in such manner as the Governments of the United States and Mexico might agree, or Congress should otherwise direct. Act Dec. 28, 1892, con

ferred on the Court of Claims jurisdiction to hear and determine such allegations of fraud, with power to vacate and set aside the award. Held, that the former act was a mere expression of the desire of Congress to have the charges investigated, and the latter provided an appropriate and effective means of investigation in a judicial forum, and that neither act limited or increased the constitutional diplomatic powers of the President. U. S. v. La Abra Silver Min. Co. (1894), 29 Ct. Cl. 432.

Diplomatic powers.-Constitutional diplomatic powers of President as to international award. U. S. v. La Abra Silver Min. Co. (1894), 29 Ct. Cl. 432.

Protection of lives and property of citizens abroad. The interposition of the President to protect abroad the lives and property of citizens of the United States is a matter resting in his discretion. Durand v. Hollins (C. C. 1860), Fed. Cas. No. 4186.

Surrender of fugitives from justice. While an Executive order under act Aug. 12, 1848, to surrender to a foreign Government a fugitive from justice is a purely national act to be performed by the Executive, Congress may vest authority in judicial magistrates to arrest and commit fugitives preparatory to a surrender, and such judicial action may be independent of the demands of the Executive (Justices Catron, McLean, Wayne, and Grier, in separate opinions). In re Kaine (1852), 14 How. 103, 110, 14 L. Ed. 345.

Proclamation to celebrate anniversary.It is within the power of the President to Issue a general proclamation calling the attention of the people of the country to the fiftieth anniversary of the issuance of the Emancipation Proclamation and inviting them to unite in an appropriate celebration of that event. (1911) 29 Op. Atty. Gen. 52.

Proclamation interdicting commerce.-The President's proclamation of Aug. 9, 1809, was without legal operation, and did not revive the nonintercourse act of Mar. 1, 1809 (2 Stat. 528). The Orono (C. C. 1812), Fed. Cas. No. 10,585.

The proclamation of Aug. 9, 1809, interdicting commerce with Great Britain, held not legal. President's Proclamation Declared Illegal (C. C. 1812), Fed. Cas. No. 11,391.

Protecting and retaking public property. The President has the right to take such measures as may be necessary to protect the public property, as well as to retake public property in which the Government has been carrying on its business, and from which its officers have been unlawfully expelled. (1860) 9 Op. Atty. Gen. 517.

Preservation of territory and protection of foreign interests.-The preservation of

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our territorial integrity and the protection of our foreign interests are intrusted in the first instance to the President. (1898) 22 Op. Atty. Gen. 13.

Return of relics taken for safe-keeping during Civil War.-The Mount Vernon relics (so called), which were removed from Arlington by the military authorities in 1862 for safe-keeping, and deposited in the Smithsonian Institution, were the private prop erty of George Washington Custis Lee, having passed to him under the will of his grandfather, George Washington Park Custis, on the death of his mother, Mary Ann Randolph Lee, and the Government having taken possession of these articles solely for their safe-keeping, and never having acquired title to them, the President has the power to return them to their rightful owner. Their restoration now is quite as much within the scope of Executive authority as has been their preservation.

(1901) 23 Op. Atty. Gen. 437.

Power to forgive, discharge, or reduce debts. There is no statute under which the President may forgive, discharge, or reduce generally debts due to the United States. (1864) 11 Op. Atty. Gen. 124.

Compromise of claims.-The Executive may compromise doubtful claims by taking a conveyance of lands, in satisfaction, and may afterwards sell and convey them. U. S. v. Hudson (C. C. 1843), Fed. Cas. No. 15,413. See, also, U. S. v. Lane (C. C. 1844), Fed. Cas. No. 15,559.

Right to decide as to withholding letter written to President. In the case of a letter written to the President, and in the hands of the prosecuting attorney, the President alone can decide as to the propriety of withholding parts of it, and he can not delegate his discretion. U. S. v. Burr (C. C. 1807), Fed. Cas. No. 14,694.

Assent to proceedings as to deserting seamen. A legislative act of the British Colony of New South Wales, enacted that certain proceedings may be had in its court as to deserting seamen of any foreign country in that colony, provided its Government assents. Held, that the President can not give such assent on the part of the United States, but that it can only be done by treaty or act of Congress. (1853) 6 Op. Atty. Gen. 209.

Disposition of buildings on land mistakenly supposed to be public land. An application should be made to Congress to authorize a disposition of the buildings, placed on land mistakenly supposed to be a part of the public domain, as neither the President nor the Secretary of War has authority to dispose of the same. (1891) 20 Op. Atty. Gen. 284.

Disposal of public lands by lease.-The President of the United States has no authority by virtue of his office to lease the lead mines of Iowa. He can not dispose of public lands by lease without express authority from Congress. Lorimier v. Lewis (Iowa, 1843), 1 Morris, 253; 39 Am. Dec. 461.

2. Term of office. The term of four years for which a President and VicePresident shall be elected, shall, in all cases, commence on the 4th day of March next succeeding the day on which the votes of the electors have been given. R. S. 152.

3. Succession of the Vice President.-* * In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected. * * * Art. 11, sec. 1, Constitution of the United States.

Notes of Decisions.

Tenure of office. The Executive power is continuous, without regard to the governing person, and there is no interruption of the authority or any necessity of the re

newal of credentials of public ministers on a change of Presidents. (1855) 7 Op. Atty. Gen. 582, 590.

4. Succession of cabinet officers.-That in case of removal, death, resignation, or inability of both the President and Vice-President of the United States, the Secretary of State, or if there be none, or in case of his removal, death, resignation, or inability, then the Secretary of the Treasury, or if there be

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