HOW THE PRESIDENT'S OWN POWERS ARE EXERCISED

Whereas the British monarch is constitutionally under the necessity of acting always through agents if his acts are to receive legal recognition, the President is presumed to exercise certain of his constitutional powers personally. In the words of an opinion by Attorney General Cushing in 1855: "It may be presumed that he, the man discharging the presidential office, and he alone, grants reprieves and pardons for offences against the United States, * * * So he, and he alone, is the supreme 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. That is a power constitutionally inherent in the person of the President. No act of Congress, no act even of the President himself, can, by constitutional possibility, authorize or create any military officer not subordinate to the President."[374] Moreover, the obligation to act personally may be sometimes enlarged by statute, as, for example, by the act organizing the President with other designated officials into "an Establishment by name of the Smithsonian Institute."[375] Here, says the Attorney General, "the President's name of office is designatio personae." He is also of opinion that expenditures from the "secret service" fund in order to be valid, must be vouched for by the President personally.[376] On like grounds the Supreme Court once held void a decree of a court martial, because, though it has been confirmed by the Secretary of War, it was not specifically stated to have received the sanction of the President as required by the 65th Article of War.[377] This case has, however, been virtually overruled, and at any rate such cases are exceptional.[378]

The general rule, as stated by the Court, is that when any duty is cast by law upon the President, it may be exercised by him through the head of the appropriate department, whose acts, if performed within the law, thus become the President's acts.[379] In Williams v. United States[380] was involved an act of Congress, which prohibited the advance of public money in any case whatever to disbursing officers of the United States, except under special direction by the President.[381] The Supreme Court held that the act did not require the personal performance by the President of this duty. Such a practice, said the Court, if it were possible, would absorb the duties of the various departments of the government in the personal acts of one chief executive officer, and be fraught with mischief to the public service. The President's duty in general requires his superintendence of the administration; yet he cannot 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.[382] As a matter of administrative practice, in fact, most orders and instructions emanating from the heads of the departments, even though in pursuance of powers conferred by statute on the President, do not even refer to the President.[383]

POWER AND DUTY OF THE PRESIDENT IN RELATION TO SUBORDINATE EXECUTIVE OFFICERS

Suppose, that the law casts a duty upon a head of department eo nomine, does the President thereupon become entitled by virtue of his duty to "take care that the laws be faithfully executed," to substitute his own judgment for that of the principal officer regarding the discharge of such duty? In the debate in the House in 1789 on the location of the removal power Madison argued that it ought to be attributed to the President alone because it was "the intention of the Constitution, expressed especially in the faithful execution clause, that the first magistrate should be responsible for the executive department"; and this responsibility, he held, carried with it the power to "inspect and control" the conduct of subordinate executive officers. "Vest," said he, "the power [of removal] in the Senate jointly with the President, and you abolish at once the great principle of unity and responsibility in the executive department, which was intended for the security of liberty and the public good."[384] But this was said with respect to the office of Secretary of State; and when shortly afterward the question arose as to the power of Congress to regulate the tenure of the Comptroller of the Treasury, Madison assumed a very different attitude, conceding in effect that this officer was to be an arm of certain of Congress's own powers, and should therefore be protected against the removal power.[385] (See p. 458). And in Marbury v. Madison,[386] Chief Justice Marshall traced a parallel distinction between the duties of the Secretary of State under the original act which had created a "Department of Foreign Affairs" and those which had been added by the later act changing the designation of the department to its present one. The former were, he pointed out, entirely in the "political field," and hence for their discharge the Secretary was left responsible absolutely to the President. The latter, on the other hand, were exclusively of statutory origin and sprang from the powers of Congress. For these, therefore, the Secretary was "an officer of the law" and "amenable to the law for his conduct."[387]

ADMINISTRATIVE DECENTRALIZATION VERSUS JACKSONIAN CENTRALISM

An opinion rendered by Attorney General Wirt in 1823 asserted the proposition that the President's duty under the "take care" clause required of him scarcely more than that he should bring a criminally negligent official to book for his derelictions, either by removing him or by setting in motion against him the processes of impeachment or of criminal prosecution.[388] The opinion entirely overlooked the important question of the location of the power to interpret the law which is inevitably involved in any effort to enforce it. The diametrically opposed theory that Congress is unable to vest any head of an executive department, even within the field of Congress's specifically delegated powers, with any legal discretion which the President is not entitled to control was first asserted in unambiguous terms in President Jackson's Protest Message of April 15, 1834,[389] defending his removal of Duane as Secretary of the Treasury, on account of the latter's refusal to remove the deposits from the Bank of the United States. Here it is asserted "that the entire executive power is vested in the President"; that the power to remove those officers who are to aid him in the execution of the laws is an incident of that power; that the Secretary of the Treasury was such an officer; that the custody of the public property and money was an executive function exercised through the Secretary of the Treasury and his subordinates: that in the performance of these duties the Secretary was subject to the supervision and control of the President: and finally that the act establishing the Bank of the United States "did not, as it could not change the relation between the President and Secretary—did not release the former from his obligation to see the law faithfully executed nor the latter from the President's supervision and control."[390] In short, the President's removal power, in this case unqualified, was the sanction provided by the Constitution for his power and duty to control his "subordinates" in all their official actions of public consequence.

CONGRESSIONAL POWER VERSUS PRESIDENTIAL DUTY TO THE LAW

Five years later the case of Kendall v. United States[391] arose. The United States owed one Stokes money, and when Postmaster General Kendall, at Jackson's instigation, refused to pay it, Congress passed a special act ordering payment. Kendall, however, still proved noncompliant, whereupon Stokes sought and obtained a mandamus in the United States circuit court for the District of Columbia, and on appeal this decision was affirmed by the Supreme Court. While Kendall v. United States, like Marbury v. Madison, involved the question of the responsibility of a head of department for the performance of a ministerial duty, the discussion by counsel before the Court and the Court's own opinion covered the entire subject of the relation of the President to his subordinates in the performance by them of statutory duties. The lower court had asserted that the duty of the President under the faithful execution clause gave him no other control over the officer than to see that he acts honestly, with proper motives, but no power to construe the law, and see that the executive action conforms to it. Counsel for Kendall attacked this position vigorously, relying largely upon statements by Hamilton, Marshall, James Wilson, and Story having to do with the President's power in the field of foreign relations. The Court rejected the implication with emphasis. There are, it pointed out, "certain political duties imposed upon many officers in the executive department, the discharge of which is under the direction of the President. But it would be an alarming doctrine, that Congress cannot impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the Constitution; and in such cases the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the President. And this is emphatically the case, where the duty enjoined is of a mere ministerial character."[392] In short, the Court recognized the underlying question of the case to be whether the President's duty to "take care that the laws be faithfully executed" made it constitutionally impossible for Congress ever to entrust the construction of its statutes to anybody but the President; and it answered this in the negative.

MYERS CASE VERSUS HUMPHREY CASE

How does this issue stand today? The answer to this question, so far as there is one, is to be sought in a comparison of the Court's decisions in the Myers and Humphrey cases respectively.[393] The former decision is still valid to support the President's right to remove, and hence to control the decisions of, all officials through whom he exercises the great political powers which he derives from the Constitution; also all officials—usually heads of departments—through whom he exercises powers conferred upon him by statute. The Humphrey decision assures to Congress the right to protect the tenure, and hence the freedom of decision of all officials upon whom, in the exercise of its delegated powers, it confers duties of a "quasi-legislative" or a "quasi-judicial" nature. The former may be described as duties for the satisfactory discharge of which Congress justifiably feels that a specialized and informed judgment is requisite. The latter are duties the discharge of which closely touches private rights and which ought therefore be accompanied or preceded by a "quasi-judicial" inquiry capable of affording the claimants of such rights the opportunity to be heard. In neither case is the President entitled to force his reading of the law upon the officer, but only to take care that the latter exercise his powers according to his own best lights.

POWER OF THE PRESIDENT TO GUIDE ENFORCEMENT OF THE PENAL LAW

This matter also came to a head in "the reign of Andrew Jackson," preceding, and indeed foreshadowing, the Duane episode by some months. "At that epoch," Wyman relates in his Principles of Administrative Law, "the first announcement of the doctrine of centralism in its entirety was set forth in an obscure opinion upon an unimportant matter—The Jewels of the Princess of Orange, 2 Opin. 482 (1831). These jewels * * * were stolen from the Princess by one Polari, and were seized by the officers of the United States Customs in the hands of the thief. Representations were made to the President of the United States by the Minister of the Netherlands of the facts in the matter, which were followed by request for return of the jewels. In the meantime the District Attorney was prosecuting condemnation proceedings in behalf of the United States which he showed no disposition to abandon. The President felt himself in a dilemma, whether if it was by statute the duty of the District Attorney to prosecute or not, the President could interfere and direct whether to proceed or not. The opinion was written by Taney, then Attorney-General; it is full of pertinent illustrations as to the necessity in an administration of full power in the chief executive as the concomitant of his full responsibility. It concludes: If it should be said that, the District Attorney having the power to discontinue the prosecution, there is no necessity for inferring a right in the President to direct him to exercise it—I answer that the direction of the President is not required to communicate any new authority to the District Attorney, but to direct him in the execution of a power he is admitted to possess. The most valuable and proper measure may often be for the President to order the District Attorney to discontinue prosecution. The District Attorney might refuse to obey the President's order; and if he did refuse, the prosecution, while he remained in office, would still go on; because the President himself could give no order to the court or to the clerk to make any particular entry. He could only act through his subordinate officer the District Attorney, who is responsible to him and who holds his office at his pleasure. And if that officer still continue a prosecution which the President is satisfied ought not to continue, the removal of the disobedient officer and the substitution of one more worthy in his place would enable the President through him faithfully to execute the law. And it is for this among other reasons that the power of removing the District Attorney resides in the President."[394]

THE PRESIDENT AS LAW INTERPRETER

The power accruing to the President from his function of law interpretation preparatory to law enforcement is daily illustrated in relation to such statutes as the Anti-Trust Acts, the Taft-Hartley Act, the Internal Security Act, and many lesser statutes. Nor is this the whole story. Not only do all Presidential regulations and orders based on statutes which vest power in him or on his own constitutional powers have the force of law, provided they do not transgress the Court's reading of such statutes or of the Constitution,[395] but he sometimes makes law in a more special sense. In the famous Neagle case[396] an order of the Attorney General to a United States marshal to protect a Justice of the Supreme Court whose life had been threatened by a suitor was attributed to the President and held to be "a law of the United States" in the sense of section 753 of the Revised Statutes, and as such to afford basis for a writ of habeas corpus transferring the said marshal, who had "got his man," from State to national custody. Speaking for the Court, Justice Miller inquired: "Is this duty [the duty of the President to take care that the laws be faithfully executed] limited to the enforcement of acts of Congress or of treaties of the United States according to their express terms, or does it include the rights, duties and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of the government under the Constitution?"[397] Obviously, an affirmative answer is assumed to the second branch of this inquiry, an assumption which is borne out by numerous precedents. And in United States v. Midwest Oil Company[398] it was ruled that the President had, by dint of repeated assertion of it from an early date, acquired the right to withdraw, via the Land Department, public lands, both mineral and nonmineral, from private acquisition, Congress having never repudiated the practice.

MILITARY POWER IN LAW ENFORCEMENT: THE POSSE COMITATUS

"Whenever, by reason of unlawful obstructions, combinations, or assemblages of persons, or rebellion against the authority of the Government of the United States, it shall become impracticable, in the judgment of the President, to enforce, by the ordinary course of judicial proceedings, the laws of the United States within any State or Territory, it shall be lawful for the President to call forth the militia of any or all the States, and to employ such parts of the land and naval forces of the United States as he may deem necessary to enforce the faithful execution of the laws of the United States, or to suppress such rebellion, in whatever State or Territory thereof the laws of the United States may be forcibly opposed, or the execution thereof forcibly obstructed."[399] This provision of the United States Code consolidates a course of legislation which began at the time of the Whiskey Rebellion of 1792.[400] In Martin v. Mott,[401] which arose out of the War of 1812, it was held that the authority to decide whether the exigency has arisen belongs exclusively to the President.[402] Even before that time, Jefferson had in 1808, in the course of his efforts to enforce the Embargo Acts, issued a proclamation ordering "all officers having authority, civil or military, who shall be found in the vicinity" of an unruly combination to aid and assist "by all means in their power, by force of arms and otherwise" the suppression of such combination.[403] Forty-six years later Attorney General Cushing advised President Pierce that in enforcing the Fugitive Slave Act of 1850, marshals of the United States, had authority when opposed by unlawful combinations, to summon to their aid not only bystanders and citizens generally, but armed forces within their precincts, both State militia and United States officers, soldiers, sailors, and marines,[404] a doctrine which Pierce himself improved upon two years later by asserting, with reference to the civil war then raging in Kansas, that it lay within his obligation to take care that the laws be faithfully executed to place the forces of the United States in Kansas at the disposal of the marshal there, to be used as a portion of the posse comitatus. Lincoln's call of April 15, 1861, for 75,000 volunteers was, on the other hand, a fresh invocation, though of course on a vastly magnified scale, of Jefferson's conception of a posse comitatus subject to Presidential call.[405] The provision above extracted from the United States Code ratifies this conception as regards the State militias and the national forces.

SUSPENSION OF HABEAS CORPUS BY THE PRESIDENT

See Article I, Section 9, clause 2, pp. 312-315.

PREVENTIVE MARTIAL LAW

The question of executive power in the presence of civil disorder is dealt with in modern terms in Moyer v. Peabody,[406] decided in 1909, to which the Debs Case,[407] decided in 1895, may be regarded as an addendum. Moyer, a labor leader, brought suit against Peabody, for having ordered his arrest during a labor dispute which occurred while Peabody was governor of Colorado. Speaking for a unanimous Court, one Justice being absent, Justice Holmes said: "Of course the plaintiff's position is that he has been deprived of his liberty without due process of law. But it is familiar that what is due process of law depends on circumstances. It varies with the subject matter and the necessities of the situation. * * * The facts that we are to assume are that a state of insurrection existed and that the Governor, without sufficient reason but in good faith, in the course of putting the insurrection down held the plaintiff until he thought that he safely could release him. * * * In such a situation we must assume that he had a right under the state constitution and laws to call out troops, as was held by the Supreme Court of the State. * * * That means that he shall make the ordinary use of the soldiers to that end; that he may kill persons who resist and, of course, that he may use the milder measure of seizing the bodies of those whom he considers to stand in the way of restoring peace. Such arrests are not necessarily for punishment, but are by way of precaution to prevent the exercise of hostile power. So long as such arrests are made in good faith and in the honest belief that they are needed in order to head the insurrection off, the Governor is the final judge and cannot be subjected to an action after he is out of office on the ground that he had not reasonable ground for his belief. * * * When it comes to a decision by the head of the State upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process."[408]

THE DEBS CASE

The Debs case of 1895 arose out of a railway strike which had caused the President to dispatch troops to Chicago the previous year. Coincidently with this move, the United States district attorney stationed there, acting upon orders from Washington, obtained an injunction from the United States circuit court forbidding the strike on account of its interference with the mails and with interstate commerce. The question before the Supreme Court was whether this injunction, for violation of which Debs has been jailed for contempt of court, had been granted with jurisdiction. Conceding, in effect, that there was no statutory warrant for the injunction, the Court nevertheless validated it on the ground that the Government was entitled thus to protect its property in the mails, and on a much broader ground which is stated in the following passage of Justice Brewer's opinion for the Court: "Every government, entrusted, by the very terms of its being, with powers and duties to be exercised and discharged for the general welfare, has a right to apply to its own courts for any proper assistance in the exercise of the one and the discharge of the other. * * * While it is not the province of the Government to interfere in any mere matter of private controversy between individuals, or to use its granted powers to enforce the rights of one against another, yet, whenever the wrongs complained of are such as affect the public at large, and are in respect of matters which by the Constitution are entrusted to the care of the Nation and concerning which the Nation owes the duty to all the citizens of securing to them their common rights, then the mere fact that the Government has no pecuniary interest in the controversy is not sufficient to exclude it from the courts, or prevent it from taking measures therein to fully discharge those constitutional duties."[409]

STATUS OF THE DEBS CASE TODAY

The restrictions imposed by the Norris-LaGuardia Act[410] on the issuance of injunctions by the federal courts in cases "involving or growing out of any labor dispute" later cast a shadow of doubt over the Debs case, which was deepened, if anything, by the Court's decision in 1947, in United States v. United Mine Workers.[411] But such doubts have been since dispelled by the Taft-Hartley Act, which provides that whenever in his opinion a threatened or actual strike or lockout affecting the whole or a substantial part of an industry engaged in interstate commerce will, "if permitted to occur or continue, imperil the national health or safety," the President may appoint a board of inquiry and, upon its so finding, "may direct the Attorney General to petition any district court of the United States having jurisdiction of the parties to enjoin such strike or lockout or the continuing thereof * * *," and the Court shall have jurisdiction to do so, provided it shares the President's view of the situation.[412] Administration and labor critics of the act did not challenge the constitutionality of this provision. They questioned its necessity in view of the President's "inherent powers" in the face of emergency.[413]

THE PRESIDENT'S DUTY IN CASES OF DOMESTIC VIOLENCE IN THE STATES

See Art. IV, sec. 4, p. 705.

THE PRESIDENT AS EXECUTIVE OF THE LAW OF NATIONS

Illustrative of the President's duty to discharge the responsibilities of the United States at International Law with a view to avoiding difficulties with other governments, was the action of President Wilson in closing the Marconi Wireless Station at Siasconset, Massachusetts on the outbreak of the European War in 1914, the company having refused assurance that it would comply with naval censorship regulations. Justifying this drastic invasion of private rights, Attorney General Gregory said: "The President of the United States is at the head of one of the three great coordinate departments of the Government. He is Commander in Chief of the Army and the Navy. * * * If the President is of the opinion that the relations of this country with foreign nations are, or are likely to be, endangered by action deemed by him inconsistent with a due neutrality, it is his right and duty to protect such relations; and in doing so, in the absence of any statutory restrictions, he may act through such executive office or department as appears best adapted to effectuate the desired end. * * * I do not hesitate, in view of the extraordinary conditions existing, to advise that the President, through the Secretary of the Navy or any appropriate department, close down, or take charge of and operate, the plant * * *, should he deem it necessary in securing obedience to his proclamation of neutrality."[414]

PROTECTION OF AMERICAN RIGHTS OF PERSON AND PROPERTY ABROAD

The right of the President to use force in vindication of American rights of person and property abroad was demonstrated in 1854 by the bombardment of Greytown, Nicaragua by Lieutenant Hollins of the U.S.S. Cyane, in default of reparation from the local authorities for an attack by a mob on the United States consul at that place. Upon his return to the United States Hollins was sued in a federal court by one Durand for the value of certain property which was alleged to have been destroyed in the bombardment. His defense was based upon the orders of the President and Secretary of the Navy, and was sustained by Justice Nelson, then on circuit, in the following words: "As the Executive head of the nation, the President is made the only legitimate organ of the General Government, to open and carry on correspondence or negotiations with foreign nations, in matters concerning the interests of the country or of its citizens. It is to him, also, the citizens abroad must look for protection of person and of property, and for the faithful execution of the laws existing and intended for their protection. For this purpose, the whole Executive power of the country is placed in his hands, under the Constitution, and the laws passed in pursuance thereof; and different Departments of government have been organized, through which this power may be most conveniently executed, whether by negotiation or by force—a Department of State and a Department of the Navy.

"Now, as it respects the interposition of the Executive abroad, for the protection of the lives or property of the citizen, the duty must, of necessity, rest in the discretion of the President. Acts of lawless violence, or of threatened violence to the citizen or his property, cannot be anticipated and provided for; and the protection, to be effectual or of any avail, may, not unfrequently, require the most prompt and decided action. Under our system of Government, the citizen abroad is as much entitled to protection as the citizen at home. The great object and duty of Government is the protection of the lives, liberty, and property of the people composing it, whether abroad or at home; and any Government failing in the accomplishment of the object, or the performance of the duty, is not worth preserving."[415]

PRESIDENTIAL WORLD POLICING

In his little volume on World Policing and the Constitution[416] Mr. James Grafton Rogers lists 149 episodes similar to the Greytown affair, stretching between the undeclared war with France in 1798 and Pearl Harbor. While inviting some pruning, the list demonstrates beyond peradventure the existence in the President, as Chief Executive and Commander in Chief, of power to judge whether a situation requires the use of available forces to protect American rights of person and property outside the United States and to take action in harmony with his decision. Such employment of the forces have, it is true, been usually justifiable acts of self defense rather than acts of war, but the countries where they occurred were entitled to treat them as acts of war nevertheless, although they have generally been too feeble to assert their prerogative in this respect, and have sometimes actually chosen to turn the other cheek. Thus when in 1900 President McKinley, without consulting Congress, contributed a sizable contingent to the joint forces that went to the relief of the foreign legations in Peking, the Chinese Imperial Government agreed that this action had not constituted war.[417]

The Atlantic Pact

Article V of the Atlantic Pact builds on such precedents. The novel feature is its enlarged conception of defensible American interests abroad. In the words of the published abstract of the Report of the Committee on Foreign Relations on the Pact, "Article 5 records what is a fact, namely, that an armed attack within the meaning of the treaty would in the present-day world constitute an attack upon the entire community comprising the parties to the treaty, including the United States. Accordingly, the President and the Congress, each within their sphere of assigned constitutional responsibilities, would be expected to take all action necessary and appropriate to protect the United States against the consequences and dangers of an armed attack committed against any party to the treaty."[418] But from the very nature of things, the discharge of this obligation against overt force will ordinarily rest with the President in the first instance, just as has the discharge in the past of the like obligation in the protection of American rights abroad. Furthermore, in the discharge of this obligation the President will ordinarily be required to use force and perform acts of war. Such is the verdict of history, a verdict which was foreseen more or less definitely by the framers themselves.[419]

PRESIDENTIAL ACTION IN THE DOMAIN OF CONGRESS: THE STEEL SEIZURE CASE

Facts[420]

To avert a nation-wide strike of steel workers which he believed would jeopardize the national defense, President Truman, on April 8th, 1952, issued Executive Order 10340[421] directing the Secretary of Commerce to seize and operate most of the steel mills of the country. The Order cited no specific statutory authorization, but invoked generally the powers vested in the President by the Constitution and laws of the United States. Secretary Sawyer forthwith issued an order seizing the mills and directing their presidents to operate them as operating managers for the United States in accordance with his regulations and directions. The President promptly reported these events to Congress, conceding Congress's power to supersede his Order; but Congress failed to do anything about the matter either then or a fortnight later, when the President again brought up the subject in a special message.[422] It had in fact provided other methods of dealing with such situations, in the elaboration of which it had declined repeatedly to authorize governmental seizures of property to settle labor disputes. The steel companies sued the Secretary in a federal district court, praying for a declaratory judgment and injunctive relief. The district court issued a preliminary injunction, which the court of appeals stayed.[423] On certiorari to the court of appeals, the district court's order was affirmed by the Supreme Court by a vote of six justices to three. Justice Black delivered the opinion of the Court in which Justices Frankfurter, Douglas, Jackson, and Burton formally concurred. Justice Clark expressly limited his concurrence to the judgment of the Court. All these Justices presented what are termed "concurring" opinions. The Chief Justice, speaking for himself and Justices Reed and Minton, presented a dissenting opinion.

The Doctrine of the Opinion of the Court

The chief points urged in the Black opinion are the following: There was no statute which expressly or impliedly authorized the President to take possession of the property involved. On the contrary, in its consideration of the Taft-Hartley Act in 1947, Congress refused to authorize governmental seizures of property as a method of preventing work stoppages and settling labor disputes. Authority to issue such an order in the circumstances of the case was not deducible from the aggregate of the President's executive powers under Article II of the Constitution; nor was the Order maintainable as an exercise of the President's powers as Commander in Chief of the Armed Forces. The power sought to be exercised was the lawmaking power, which the Constitution vests in the Congress alone. Even if it were true that other Presidents have taken possession of private business enterprises without congressional authority in order to settle labor disputes, Congress was not thereby divested of its exclusive constitutional authority to make the laws necessary and proper to carry out all powers vested by the Constitution "in the Government of the United States, or any Department or Officer thereof."[424]

The Factual Record

The pivotal proposition of the opinion is, in brief, that inasmuch as Congress could have ordered the seizure of the steel mills, the President had no power to do so without prior congressional authorization. To support this position no proof is offered in the way of past opinion, and the following extract from Justice Clark's opinion presents a formidable challenge to it: "One of this Court's first pronouncements upon the powers of the President under the Constitution was made by Mr. Chief Justice John Marshall some one hundred and fifty years ago. In Little v. Barreme,[425] he used this characteristically clear language in discussing the power of the President to instruct the seizure of the Flying Fish, a vessel bound from a French port: 'It is by no means clear that the president of the United States whose high duty it is to "take care that the laws be faithfully executed," and who is commander in chief of the armies and navies of the United States, might not, without any special authority for that purpose, in the then existing state of things, have empowered the officers commanding the armed vessels of the United States, to seize and send into port for adjudication, American vessels which were forfeited by being engaged in this illicit commerce. But when it is observed that [an act of Congress] gives a special authority to seize on the high seas, and limits that authority to the seizure of vessels bound or sailing to a French port, the legislature seems to have prescribed that the manner in which this law shall be carried into execution, was to exclude a seizure of any vessel not bound to a French port.' Accordingly, a unanimous Court held that the President's instructions had been issued without authority and that they could not 'legalize an act which without those instructions would have been a plain trespass.' I know of no subsequent holding of this Court to the contrary."[426]

Another field which the President and Congress have each occupied at different times is extradition. In 1799 President Adams, in order to execute the extradition provisions of the Jay Treaty, issued a warrant for the arrest of one Jonathan Robbins. As Chief Justice Vinson recites in his opinion: "This action was challenged in Congress on the ground that no specific statute prescribed the method to be used in executing the treaty. John Marshall, then a member of the House of Representatives, in the course of his successful defense of the President's action, said: 'Congress, unquestionably, may prescribe the mode, and Congress may devolve on others the whole execution of the contract; but, till this be done, it seems the duty of the Executive department to execute the contract by any means it possesses.'"[427] In 1848 Congress enacted a statute governing this subject which confers upon the courts, both State and Federal, the duty of handling extradition cases.[428]

The first Neutrality Proclamation was issued by President Washington in 1793 without congressional authorization.[429] The following year Congress enacted the first neutrality statute,[430] and since then proclamations of neutrality have been based on an act of Congress governing the matter. The President may, in the absence of legislation by Congress, control the landing of foreign cables in the United States and the passage of foreign troops through American territory, and has done so repeatedly.[431] Likewise, until Congress acts, he may govern conquered territory[432] and, "in the absence of attempts by Congress to limit his power," may set up military commissions in territory occupied by the armed forces of the United States.[433] He may determine, in a way to bind the courts, whether a treaty is still in force as law of the land, although again the final power in the field rests with Congress.[434] One of the President's most ordinary powers and duties is that of ordering the prosecution of supposed offenders against the laws of the United States. Yet Congress may do the same thing.[435] On September 22, 1862, President Lincoln issued a proclamation suspending the privilege of the writ of habeas corpus throughout the Union in certain classes of cases. By an act passed March 3, 1863, Congress ratified this action of the President and at the same time brought the whole subject of military arrests in the United States under legal control.[436] Conversely, when President Wilson failed in March 1917 to obtain Congress's consent to his arming American merchant vessels with defensive arms, he went ahead and did it anyway, "fortified not only by the known sentiments of the majority in Congress but also by the advice of his Secretary of State and Attorney General."[437]

On the specific matter of property seizures, Justice Frankfurter's concurring opinion in the Youngstown Case is accompanied by appendices containing a synoptic analysis of legislation authorizing seizures of industrial property and also a summary of seizures of industrial plants and facilities by Presidents without definite statutory warrant. Eighteen such statutes are listed, all but the first of which were enacted between 1916 and 1951. Of presidential seizures unsupported by reference to specific statutory authorization, he lists eight as occurring during World War I. To justify these it was deemed sufficient to refer to "the Constitution and laws" generally. For the World War II period he lists eleven seizures in justification of which no statutory authority was cited. The first of these was the seizure of the North American Aviation, Inc., of Englewood, California. In support of this action Attorney General Jackson, as Chief Justice Vinson points out in his dissenting opinion, "vigorously proclaimed that the President had the moral duty to keep this nation's defense effort a 'going concern.'"[438] Said the then Attorney General, "The Presidential proclamation rests upon the aggregate of the Presidential powers derived from the Constitution itself and from statutes enacted by the Congress. The Constitution lays upon the President the duty 'to take care that the laws be faithfully executed.' Among the laws which he is required to find means to execute are those which direct him to equip an enlarged army, to provide for a strengthened navy, to protect Government property, to protect those who are engaged in carrying out the business of the Government, and to carry out the provisions of the Lend-Lease Act. For the faithful execution of such laws the President has back of him not only each general law-enforcement power conferred by the various acts of Congress but the aggregate of all such laws plus that wide discretion as to method vested in him by the Constitution for the purpose of executing the laws."[439] In the War Labor Disputes Act of June 25, 1943,[440] such seizures were put on a statutory basis. As the Chief Justice points out, the purpose of this measure, as stated by its sponsor, was not to augment presidential power but to "let the country know that the Congress is squarely behind the President."[441]

In United States v. Pewee Coal Company, Inc.[442] the Court had before it the claim of a coal mine operator whose property was seized by the President without statutory authorization, "to avert a nation-wide strike of miners." The company brought an action in the Court of Claims to recover under the Fifth Amendment for the total operating losses sustained during the period in which this property was operated by the United States. The Court awarded judgment for $2,241.46 and the Supreme Court sustained this judgment, a result which implied the validity of the seizure.[443] Said Justice Reed, in his concurring opinion of the case: "The relatively new technique of temporary taking by eminent domain is a most useful administrative device: many properties, such as laundries, or coal mines, or railroads, may be subjected to public operation only for a short time to meet war or emergency needs, and can then be returned to their owners." The implications of United States v. Pewee Coal Company, Inc.,[444] clearly sustained the Government in Youngstown, assuming that Congress had not acted in the latter case. And one instance of seizure by executive order Justice Frankfurter fails to mention. This was the seizure by President Wilson in the late summer of 1914, following the outbreak of war in Europe, of the Marconi Wireless Station at Siasconset when the Company refused assurance that it would comply with naval censorship regulations. Attorney General Gregory's justification of this action at the time was quoted on an earlier page.[445]

The doctrine dictated by the above considerations as regards the exercise of executive power in the field of legislative power was well stated by Mr. John W. Davis, principal counsel on the present occasion for the steel companies, in a brief which he filed nearly forty years ago as Solicitor General, in defense of the action of the President in withdrawing certain lands from public entry although his doing so was at the time contrary to express statute. "Ours," the brief reads, "is a self-sufficient Government within its sphere. (Ex parte Siebold, 100 U.S. 371, 395; in re Debs, 158 U.S. 564, 578.) 'Its means are adequate to its ends' (McCulloch v. Maryland, 4 Wheat. 316, 424), and it is rational to assume that its active forces will be found equal in most things to the emergencies that confront it. While perfect flexibility is not to be expected in a Government of divided powers, and while division of power is one of the principal features of the Constitution, it is the plain duty of those who are called upon to draw the dividing lines to ascertain the essential, recognize the practical, and avoid a slavish formalism which can only serve to ossify the Government and reduce its efficiency without any compensating good. The function of making laws is peculiar to Congress, and the Executive can not exercise that function to any degree. But this is not to say that all of the subjects concerning which laws might be made are perforce removed from the possibility of Executive influence. The Executive may act upon things and upon men in many relations which have not, though they might have, been actually regulated by Congress. In other words, just as there are fields which are peculiar to Congress and fields which are peculiar to the Executive, so there are fields which are common to both, in the sense that the Executive may move within them until they shall have been occupied by legislative action. These are not the fields of legislative prerogative, but fields within which the lawmaking power may enter and dominate whenever it chooses. This situation results from the fact that the President is the active agent, not of Congress, but of the Nation. As such he performs the duties which the Constitution lays upon him immediately, and as such, also, he executes the laws and regulations adopted by Congress. He is the agent of the people of the United States, deriving all his powers from them and responsible directly to them. In no sense is he the agent of Congress. He obeys and executes the laws of Congress, not because Congress is enthroned in authority over him, but because the Constitution directs him to do so. Therefore it follows that in ways short of making laws or disobeying them, the Executive may be under a grave constitutional duty to act for the national protection in situations not covered by the acts of Congress, and in which, even, it may not be said that his action is the direct expression of any particular one of the independent powers which are granted to him specifically by the Constitution. Instances wherein the President has felt and fulfilled such a duty have not been rare in our history, though, being for the public benefit and approved by all, his acts have seldom been challenged in the courts."[446]

Concurring Opinions

Justice Frankfurter begins the material part of his opinion with the statement: "We must * * * put to one side consideration of what powers the President would have had if there had been no legislation whatever bearing on the authority asserted by the seizure, or if the seizure had been only for a short, explicitly temporary period, to be terminated automatically unless Congressional approval were given."[447] He then enters upon a review of the proceedings of Congress which attended the enactment of the Taft-Hartley Act, and concludes that "Congress has expressed its will to withhold this power [of seizure] from the President as though it had said so in so many words."[448]

Justice Douglas's contribution consists in the argument that: "The branch of government that has the power to pay compensation for a seizure is the only one able to authorize a seizure or make lawful one that the President has effected. That seems to me to be the necessary result of the condemnation provision in the Fifth Amendment."[449] This contention overlooks such cases as Mitchell v. Harmony;[450] United States v. Russell;[451] Portsmouth Harbor Land and Hotel Co. v. United States;[452] and United States v. Pewee Coal Co.;[453] in all of which a right of compensation was recognized to exist in consequence of damage to property which resulted from acts stemming ultimately from constitutional powers of the President. In United States v. Pink,[454] Justice Douglas quotes with approval the following words from the Federalist,[455] "all constitutional acts of power, whether in the executive or in the judicial branch, have as much validity and obligation as if they proceeded from the legislature." If this is so as to treaty obligations, then all the more must it be true of obligations which are based directly on the Constitution.[456]

Justice Jackson's opinion contains little that is of direct pertinence to the constitutional issue. Important, however, is his contention, which, seems to align him with Justice Frankfurter, that Congress had "not left seizure of private property an open field but has covered it by three statutory policies inconsistent with this seizure"; from which he concludes that "* * * we can sustain the President only by holding that seizure of such strike-bound industries is within his domain and beyond control by Congress."[457] The opinion concludes: "In view of the ease, expedition and safety with which Congress can grant and has granted large emergency powers, certainly ample to embrace this crisis, I am quite unimpressed with the argument that we should affirm possession of them without statute. Such power either has no beginning or it has no end. If it exists, it need submit to no legal restraint. I am not alarmed that it would plunge us straightway into dictatorship, but it is at least a step in that wrong direction. * * * But I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress. If not good law, there was worldly wisdom in the maxim attributed to Napoleon that 'The tools belong to the man who can use them.' We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers."[458]

Justice Burton, referring to the Taft-Hartley Act, says: "* * * the most significant feature of that Act is its omission of authority to seize," citing debate on the measure.[459] "In the case before us, Congress authorized a procedure which the President declined to follow."[460] Justice Clark bases his position directly upon Chief Justice Marshall's opinion in Little v. Barreme.[461] He says: "I conclude that where Congress has laid down specific procedures to deal with the type of crisis confronting the President, he must follow these procedures in meeting the crisis; * * * I cannot sustain the seizure in question because here, as in Little v. Barreme, Congress had prescribed methods to be followed by the President in meeting the emergency at hand."[462] His reference is to the Taft-Hartley Act. At the same time he endorses the view, "taught me not only by the decision of Chief Justice Marshall in Little v. Barreme, but also by a score of other pronouncements of distinguished members of this bench," that "the Constitution does grant to the President extensive authority in times of grave and imperative national emergency."[463]

Dissenting Opinion

Chief Justice Vinson launched his opinion of dissent, for himself and Justices Reed and Minton, with a survey of the elements of the emergency which confronted the President: the Korean war; the obligations of the United States under the United Nations Charter and the Atlantic Pact; the appropriations acts by which Congress has voted vast sums to be expended in our defense and that of our Allies in Europe; the fact that steel is a basic constituent of war materiel. He reproaches the Court for giving no consideration to these things, although no one had ventured to challenge the President's finding of an emergency on the basis of them.[464] He asks whether the steel seizure, considering the emergency involved, fits into the picture of presidential emergency action in the past and musters impressive evidence to show that it does. And "plaintiffs admit," he asserts, more questionably, "that the emergency procedures of Taft-Hartley are not mandatory."[465] He concludes as follows: "The diversity of views expressed in the six opinions of the majority, the lack of reference to authoritative precedent, the repeated reliance upon prior dissenting opinions, the complete disregard of the uncontroverted facts showing the gravity of the emergency and the temporary nature of the taking all serve to demonstrate how far afield one must go to affirm the order of the District Court. The broad executive power granted by Article II to an officer on duty 365 days a year cannot, it is said, be invoked to avert disaster. Instead, the President, must confine himself to sending a message to Congress recommending action. Under this messenger-boy concept of the Office, the President cannot even act to preserve legislative programs from destruction so that Congress will have something left to act upon. There is no judicial finding that the executive action was unwarranted because there was in fact no basis for the President's finding of the existence of an emergency for, under this view, the gravity of the emergency and the immediacy of the threatened disaster are considered irrelevant as a matter of law."[466]

Evaluation; Presidential Emergency Power

The doctrine of "the opinion of the Court" is that, if Congress can do it under, say, the necessary and proper clause, then the President, lacking authority from Congress, cannot do it on the justification that an emergency requires it. Although four Justices are recorded as concurring in the opinion, their accompanying opinions whittle their concurrence in some instances to the vanishing point. Justice Douglas's supplementary argument on the basis of Amendment V logically confines the doctrine of the opinion to executive seizures of property. Justices Frankfurter and Burton and, less clearly, Justice Jackson insist in effect that Congress had exercised its power in the premises of the case in opposition to seizure. Justice Clark, on the basis of Chief Justice Marshall's opinion in Little v. Barreme, holds unambiguously that, Congress having entered the field, its evident intention to rule out seizures supplied the law of the case. That the President does possess a residual of resultant power above, or in consequence of, his granted powers to deal with emergencies in the absence of restrictive legislation is explicitly asserted by Justice Clark, and impliedly held, with certain qualifications, by Justice Frankfurter and, again less clearly, by Justice Jackson; and is the essence of the position of the three dissenting Justices. Finally, the entire Court would in all probability agree to the proposition that any action of the President touching the internal economy of the country for which the justification of emergency is pleaded is always subject to revision and disallowance by the legislative power. It would seem to follow that whenever the President so acts on his own initiative he should at once report his action to Congress, and thenceforth bring the full powers of his office to the support of the desires of the Houses once these are clearly indicated.

PRESIDENTIAL IMMUNITY FROM JUDICIAL DIRECTION

By the decision of the Court in State of Mississippi v. Johnson,[467] in 1867, the President was put beyond the reach of judicial direction in the exercise of any of his powers, whether constitutional or statutory, political or otherwise. An application for an injunction to forbid President Johnson to enforce the Reconstruction Acts, on the ground of their unconstitutionality, was answered by Attorney General Stanbery as follows: "It is not upon any peculiar immunity that the individual has who happens to be President; upon any idea that he cannot do wrong; upon any idea that there is any particular sanctity belonging to him as an individual, as is the case with one who has royal blood in his veins; but it is on account of the office that he holds that I say the President of the United States is above the process of any court or the jurisdiction of any court to bring him to account as President. There is only one court or quasi court that he can be called upon to answer to for any dereliction of duty, for doing anything that is contrary to law or failing to do anything which is according to law, and that is not this tribunal but one that sits in another chamber of this Capitol."[468] Speaking by Chief Justice Chase, the Court agreed: "The Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance. The impropriety of such interference will be clearly seen upon consideration of its possible consequences. Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to observe that the court is without power to enforce its process. If, on the other hand, the President complies with the order of the court and refuses to execute the acts of Congress, is it not clear that a collision may occur between the executive and legislative departments of the government? May not the House of Representatives impeach the President for such refusal? And in that case could this court interfere, in behalf of the President, thus endangered by compliance with its mandate, and restrain by injunction the Senate of the United States from sitting as a court of impeachment? Would [not?] the strange spectacle be offered to the public world of an attempt by this court to arrest proceedings in that court?"[469] The Court further indicated that the same principle would apply to an application for a mandamus ordering the President to exercise any of his powers.

THE PRESIDENT'S SUBORDINATES AND THE COURTS

But while the courts are unable to compel the President to act or to keep him from acting, yet his acts, when performed are in proper cases subject to judicial review and disallowance.[470] Moreover, the subordinates through whom he acts may always be prohibited by writ of injunction from doing a threatened illegal act which might lead to irreparable damage,[471] or be compelled by writ of mandamus to perform a duty definitely required by law,[472] such suits being usually brought in the United States District Court for the District of Columbia.[473] Also, by common law principles, a subordinate executive officer is personally liable under the ordinary law for any act done in excess of authority.[474] Indeed, by a recent holding, district courts of the United States are bound to entertain suits for damages arising out of alleged violation of plaintiff's constitutional rights, even though as the law now stands the Court is powerless to award damages.[475] But Congress may, in certain cases, exonerate the officer by a so-called act of indemnity,[476] while as the law stands at present, any officer of the United States who is charged with a crime under the laws of a State for an act done under the authority of the United States is entitled to have his case transferred to the national courts.[477]

Section 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Impeachment

"CIVIL OFFICER"

A Member of Congress is not a civil officer within the meaning of this section; nor is a private citizen subject to impeachment;[478] but resignation of an officer does not give immunity from impeachment for acts committed while in office.[479]

"HIGH CRIMES AND MISDEMEANORS"

Most of the States have drafted their constitutional provisions on this subject in similar language. As there is no enumeration of offenses comprised under the last two categories, no little difficulty has been experienced in defining offenses in such a way that they fall within the meaning of the constitutional provisions. But impeachable offenses were not defined in England, and it was not the intention that the Constitution should attempt an enumeration of crimes or offenses for which an impeachment would lie. Treason and bribery have always been offenses whose nature was clearly understood. Other high crimes and misdemeanors which might be made causes for the impeachment of civil officers were those which embraced any misbehavior while in office. Madison, whose objection led to the insertion of the more definite phrase high crimes and misdemeanors, was the strongest advocate of a broad construction of the impeachment power. He argued that incapacity, negligence, or perfidy of the Chief Magistrate should be ground for impeachment.[480] Again, in discussing the President's power of removal, he maintained that the wanton removal from office of meritorious officers would be an act of maladministration, and would render the President liable to impeachment.[481] Hamilton thought the proceeding could "never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of the courts in favor of personal security."[482]

THE CHASE IMPEACHMENT

The above relatively flexible conception of "high crimes and misdemeanors" was, however, early replaced by a much more rigid one in consequence of Jefferson's efforts to diminish the importance of the Supreme Court, the first step in which enterprise was the impeachment in 1805 of Justice Samuel Chase. The theory of Chase's enemies was given its extremest expression by Jefferson's henchman, Senator Giles of Virginia, as follows: "Impeachment is nothing more than an enquiry, by the two Houses of Congress, whether the office of any public man might not be better filled by another. * * * The power of impeachment was given without limitation to the House of Representatives; and the power of trying impeachments was given equally without limitation to the Senate; * * * A trial and removal of a judge upon impeachment need not imply any criminality or corruption in him. * * * [but] was nothing more than a declaration of Congress to this effect: You hold dangerous opinions, and if you are suffered to carry them into effect you will work the destruction of the nation. We want your offices, for the purpose of giving them to men who will fill them better."[483] To this theory Chase's counsel opposed the proposition that "high crimes and misdemeanors" meant offenses indictable at common law; and Chase's acquittal went far to affix this reading to the phrase till after the War between the States.

THE JOHNSON IMPEACHMENT

But with the impeachment of President Johnson in 1867 for "high crimes and misdemeanors," the controversy was revived. Representative Bingham, leader of the House Managers of the impeachment, defined an impeachable offense as follows: "An impeachable high crime or misdemeanor is one in its nature or consequences subversive of some fundamental or essential principle of government or highly prejudicial to the public interest, and this may consist of a violation of the Constitution, of law, of an official oath, or of duty, by an act committed or omitted, or, without violating a positive law, by the abuse of discretionary powers from improper motives or for an improper purpose."[484] Former Justice Benjamin R. Curtis stated the position of the defense in these words: "My first position is, that when the Constitution speaks of 'treason, bribery, and other high crimes and misdemeanors,' it refers to, and includes only, high criminal offences against the United States, made so by some law of the United States existing when the acts complained of were done, and I say that this is plainly to be inferred from each and every provision of the Constitution on the subject of impeachment."[485]

LATER IMPEACHMENTS

With Johnson's acquittal, the narrow view of "high crimes and misdemeanors" appeared again to win out. Two successful impeachments of lower federal judges in recent years have, however, restored something like the broader conception of the term which Madison and Hamilton had endorsed. In 1913 Judge Archbald of the Commerce Court was removed from office by the impeachment process, and disqualified to hold and enjoy any office of honor, profit or trust under the Constitution, for soliciting for himself and friends valuable favors from railroad companies some of which were at the time litigants in his court, although it was conceded that in so doing he had not committed an indictable offense;[486] and in 1936 Judge Ritter of the Florida district court was similarly removed for conduct in relation to a receivership case which evoked serious doubts as to his integrity, although on the specific charges against him he was acquitted.[487] It is probable that in both these instances the final result was influenced by the consideration that judges of the United States hold office during "good behavior" and that the impeachment process is the only method indicated by the Constitution for determining whether a judge's behavior has been "good." In other words, as to judges of the United States at least lack of "good behavior" and "high crimes and misdemeanors" are overlapping if not precisely coincidental concepts.[488]

Notes

[1] As is pointed out by Hamilton in The Federalist No. 69.

[2] Charles C. Thach, The Creation of the Presidency, 1775-1789 (Baltimore, 1922), 36-37.

[3] Ibid. 109.

[4] Max Farrand, Records, II, 185.

[5] Ibid. II, 572 (September 10), 597.

[6] Annals of Congress 383 ff.

[7] Ibid. 396-397; 481-482. For a thorough-going review and evaluation of this debate, see James Hart, The American Presidency in Action, 152-214 (New York, 1948).

[8] Works of Alexander Hamilton, VII, 76, 80-81 (J.C. Hamilton, ed., New York, 1851). Hamilton was here simply interpreting the executive power clause in light of the views of Blackstone, Locke, and Montesquieu as to the location of power in the conduct of foreign relations. See Edward S. Corwin, The President, Office and Powers (3d ed.), 459-460. For a parallel argument to Hamilton's respecting "the judicial power of the United States," article 1, section 1, clause 1, see Justice Brewer's opinion in Kansas v. Colorado, 206 U.S. 46, 82 (1907).

[9] Myers v. United States, 272 U.S. 52 (1926).

[10] Ibid. 118.

[11] 299 U.S. 304 (1936).

[12] Ibid. 315-316, 318. See also Ibid. 319 citing U.S. Senate Reports, Committee on Foreign Relations, vol. 8, p. 24 (February 15, 1816).

[13] Ibid. 327, citing Panama Refining Co. v. Ryan, 293 U.S. 388, 421-422 (1935).

[14] In Youngstown Co. v. Sawyer, 343 U.S. 579 (1952) the doctrine is advanced that the President has no power in the field of Congress' legislative powers except such as are delegated him by Congress. This doctrine is considered below in the light of previous practice and adjudication. See pp. 489-499.

[15] See e.g., Abel Upshur, A Brief Inquiry Into the True Nature and Character of Our Federal Government (1840), 116-117.

[16] The Federalist No. 67, 503.

[17] James Hart, The American Presidency in Action (New York, 1918), 28-43.

[18] 2 Dall. 400 (1790).

[19] Messages and Papers of the Presidents, I, 56.

[20] Corwin, The President, Office and Powers (3d ed.), 377-378, 434-435, 446, 465, 484. "The executive [branch of the government], possessing the rights of self-government from nature, cannot be controlled in the exercise of them but by a law, passed in the forms of the Constitution." Thomas Jefferson, Official Opinion (1790) 5 Ford, ed. 209 (New York, 1892-1899). "In times of peace the people look most to their representatives; but in war, to the Executive solely." Letter to Caesar A. Rodney, (1810) Monticello, 9 Ford, ed. 272.

[21] Corwin 20-21, and citations.

[22] Ibid. 21-22, and citations.

[23] Ibid. 22-24.

[24] Ibid. 386. See also ibid. 281.

[25] Ford, The Rise and Growth of American Politics (New York, 1914), 293.

[26] As to the meaning of "the fourth day of March", see Charles Warren, Political Practice and the Constitution, 89 Univ. of Pa. L. Rev. (June, 1941) 1003-1025.

[27] On the anti-third term tradition, see Corwin, The President, Office and Powers (3d ed.), 43-49, 388-392.

[28] McPherson v. Blacker, 146 U.S. 1, 27 (1892).

[29] Ibid. 28-29.

[30] Max Farrand, II, 97.

[31] In re Green, 134 U.S. 377, 379-380 (1890).

[32] United States v. Hartwell, 6 Wall. 385, 393 (1868).

[33] Hawke v. Smith, 253 U.S. 221 (1920).

[34] Burroughs v. United States, 290 U.S. 534, 545 (1934).

[35] Ex parte Yarbrough, 110 U.S. 651 (1884).

[36] Burroughs v. United States, 290 U.S. 534 (1934).

[37] Ibid. 546. During the recent war, Congress laid claim in the act of September 16, 1942, to the power "in time of war" to secure to every member of the armed forces the right to vote for Members of Congress and Presidential Electors notwithstanding any provisions of State law relating to the registration of qualified voters or any poll tax requirement under State law. The constitutional validity of this act was open to serious question and by the act of April 1, 1944 was abandoned. The latter act established a War Ballot Commission which was directed to prepare an adequate number of official war ballots, whereby the service men would be enabled in certain contingencies to vote for Members of Congress and Presidential Electors; but the validity of such ballots was left to be determined by State election officials under State laws. 50 (App.) U.S.C.A. Sec. 301-302, 331, 341.

[38] 343 U.S. 214 (1952).

[39] See pp. 942-944.

[40] 1 Stat. 239.

[41] 3 U.S.C. Sec. 23.

[42] 3 U.S.C. Sec. 21.

[43] Public Law 199, 80th Cong., 1st sess. By section 202 (a) of Public Law 253 of the 80th Cong., 1st sess., approved July 26, 1947, that is, eight days after Public Law 199, the "Secretary of War" and the "Secretary of the Navy" were stricken from the line of succession and the "Secretary of Defense" whose office Public Law 253 created, was inserted instead.

[44] Cf. 13 Op. Atty. Gen. 161 (1869), holding that a specific tax by the United States upon the salary of an officer, to be deducted from the amount which otherwise would by law be payable as such salary, is a diminution of the compensation to be paid to him, which, in the case of the President of the United States, would be unconstitutional if the act of Congress levying the tax was passed during his official term.

[45] The Federalist No. 69, 513, 515.

[46] Story's Commentaries, II, Sec. 1492.

[47] Fleming v. Page, 9 How. 603, 615, 618 (1850).

[48] Ex parte Milligan, 4 Wall. 2, 139 (1866).

[49] 1 Stat. 424 (1795); 2 Stat. 443 (1807). See also Martin v. Mott, 12 Wheat. 19, 32-33 (1827), asserting the finality of the President's judgment of the existence of a state of facts requiring his exercise of the powers conferred by the act of 1795.

[50] Messages and Papers of the Presidents, VII, 3221.

[51] 2 Bl. 635 (1863).

[52] Messages and Papers of the Presidents, VII, 3215, 3216, 3481.

[53] 2 Bl. at 668-670.

[54] 12 Stat. 326 (1861).

[55] James G. Randall, Constitutional Problems under Lincoln, 118-139 (New York, 1926).

[56] See the Government's brief in United States v. Montgomery Ward and Co., 150 F. 2d 369 (1945).

[57] United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 327 (1936).

[58] See White House Digest of Provisions of Law Which Would Become Operative upon Proclamation of a National Emergency by the President. The Digest is dated December 11, 1950. It was released to the press on December 16th.

[59] 56 Stat. 23.

[60] Cong. Rec. 77th Cong., 2d sess., vol. 88, pt. 5, p. 7044 (September 7, 1942).

[61] 50 U.S.C.A. War, App. 1651. For Emergency War Agencies that were functioning at any particular time, consult the United States Government Manual of the approximate date. The executive order creating an agency is cited by number. For a Chronological List of Wartime Agencies (including government corporations) and some account of their creation down to the close of 1942, see chapter on War Powers and Their Administration by Dean Arthur T. Vanderbilt in 1942 Annual Survey of American Law (New York University School of Law, 1945), pp. 106-231. At the close of the war there were 29 agencies grouped under OEM, of which OCD, WMC, and OC were the first to fold up. At the same date there were 101 separate government corporations, engaged variously in production, transportation, power-generation, banking and lending, housing, insurance, merchandising, and other lines of business and enjoying the independence of autonomous republics, being subject to neither Congressional nor presidential scrutiny, nor to audit by the General Accounting Office.

[62] 143 F. 2d. 145 (1944).

[63] See Corwin, The President, Office and Powers (3d ed.) 296, 492.

[64] Exec. Order 9066, 7 Fed. Reg. 1407.

[65] 56 Stat. 173.

[66] Hirabayashi v. United States, 320 U.S. 81, 91-92 (1943).

[67] Korematsu v. United States, 323 U.S. 214 (1944).

[68] New York Times, June 10, 1941.

[69] 7 Fed. Reg. 237.

[70] 57 Stat. 163.

[71] "During the course of the year [1945] the President directed the seizure of many of the nation's industries in the course of labor disputes. The total number of facilities taken over is significant: two railroad systems, one public utility, nine industrial companies, the transportation systems of two cities, the motor carriers in one city, a towing company and a butadiene plant. In addition thereto the President on April 10 seized 218 bituminous coal mines belonging to 162 companies and on May 7, 33 more bituminous mines of 24 additional companies. The anthracite coal industry fared no better; on May 3 and May 7 all the mines of 365 companies and operators were taken away from the owners, and on October 6 the President ordered the seizure of 54 plants and pipe lines of 29 petroleum producing companies in addition to four taken over prior thereto.

"During the year disputes between railroad companies and the Brotherhoods resulted in the establishment of twelve Railroad Emergency Boards to investigate disputes and to report to the President. The President also established on October 9 a Railway Express Emergency Board to investigate the dispute between the Railway Express and a union.

"To implement the directives of the National War Labor Board, the Office of Economic Stabilization directed the cancellation of all priority applications, allocation applications and outstanding priorities and allocations in the cases of three clothing companies and one transportation system which refused to comply with orders of the National War Labor Board." Arthur T. Vanderbilt, War Powers and their Administration, 1945, Annual Survey of American Law (New York University School of Law), pp. 271-273.

[72] 8 Fed. Reg. 11463.

[73] 56 Stat. 23.

[74] 322 U.S. 398 (1944).

[75] Ibid. 405-406.

[76] See Corwin, The President, Office and Powers (3d ed.) 302-303.

[77] Charles Fairman, The Law of Martial Rule (Chicago, 1930), 20-22. Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (7th ed.), 283-287.

[78] Dicey, Introduction to the Study of the Law of the Constitution, Chap. VIII, 262-271.

[79] 7 How. 1 (1849). See also Martin v. Mott, 12 Wheat. 19, 32-33 (1827).

[80] 2 Bl. 635 (1863).

[81] 4 Wall. 2 (1866).

[82] Ibid. 127.

[83] Ibid. 139-140. In Ex parte Vallandigham the Court had held while war was still flagrant that it had no power to review by certiorari the proceedings of a military commission ordered by a general officer of the Army, commanding a military department. 1 Wall. 243 (1864).

[84] 31 Stat. 141, 153.

[85] Duncan v. Kahanamoku, 327 U.S. 304 (1946).

[86] Ibid. 324.

[87] Ibid. 336.

[88] Ibid. 343.

[89] Ex parte Quirin, 317 U.S. 1 (1942).

[90] 317 U.S. 1, 29-30, 35 (1942).

[91] Ibid. 1, 41-42.

[92] Ibid. 28-29.

[93] 1 Stat. 577 (1798).

[94] 327 U.S. 1 (1946).

[95] Ibid. 81.

[96] See Leo Gross, The Criminality of Aggressive War, 41 American Political Science Review (April, 1947), 205-235.

[97] Fleming v. Page, 9 How. 603, 615 (1850).

[98] Madsen v. Kinsella, 343 U.S. 341, 348 (1952). See also Johnson v. Eisentrager, 339 U.S. 703, 789 (1950).

[99] Totten v. United States, 92 U.S. 105 (1876).

[100] Hamilton v. Dillin, 21 Wall. 73 (1875); Haver v. Yaker, 9 Wall. 32 (1869).

[101] Mitchell v. Harmony, 13 How. 115 (1852); United States v. Russell, 13 Wall. 623 (1871); Totten v. United States, note 3 above; [Transcriber's Note: Reference is to Footnote 99, above.] 40 Op. Atty. Gen. 251-253 (1942).

[102] Cf. the Protocol of August 12, 1898, which largely foreshadowed the Peace of Paris; and President Wilson's Fourteen Points, which were incorporated in the Armistice of November 11, 1918.

[103] Fleming v. Page, 9 How. 603, 615 (1850).

[104] Santiago v. Nogueras, 214 U.S. 260 (1909). As to temporarily occupied territory, see Dooley v. United States, 182 U.S. 222, 230-231 (1901).

[105] Swaim v. United States, 165 U.S. 553 (1897); and cases there reviewed. See also Givens v. Zerbst, 255 U.S. 11 (1921).

[106] 15 Op. Atty. Gen. 297 and note; 30 ibid. 303; cf. 1 ibid. 233, 234, where the contrary view is stated by Attorney General Wirt.

[107] Ex parte Quirin, 317 U.S. 1, 28-29 (1942).

[108] General Orders, No. 100, Official Records, War of Rebellion, ser. III, vol. III; April 24, 1863.

[109] See e.g., Mimmack v. United States, 97 U.S. 426, 437 (1878); United States v. Corson, 114 U.S. 619 (1885).

[110] 10 U.S.C. Sec. 1590.

[111] Mullan v. United States, 140 U.S. 240 (1891); Wallace v. United States, 257 U.S. 541 (1922).

[112] Surrogate's Court, Dutchess County, New York, ruling July 25, 1950 that the estate of Franklin D. Roosevelt was not entitled to tax benefits under sections 421 and 939 of the Internal Revenue Code, which extends certain tax benefits to persons dying in the military service of the United States. New York Times, July 26, 1950, p. 27, col. 1.

[113] Farrand, I, 70, 97, 110; II, 285, 328, 335-337, 367, 537-542 (passim).

[114] Heads of Executive Departments except the Postmaster General have no fixed legal terms. For the history of legislation on the subject. See 36 Op. Atty. Gen. 12-16 (April 18, 1929); also Everett S. Brown, The Tenure of Cabinet Officers, 42 American Political Science Review 529-532 (June, 1948).

[115] See Corwin, The President, Office and Powers (3d ed.), New York University Press, 1948, 21-22, 74, 98-99, 257, 358-364, 372-373, 378-381, 516-519. The only question of a constitutional nature that has arisen concerning the Cabinet meeting is as to its right to meet, on the call of the Secretary of State, in the President's absence. Ibid. 402.

[116] United States v. Wilson, 7 Pet. 150, 160-161 (1833).

[117] 236 U.S. 79, 86 (1915).

[118] Ibid. 90-91.

[119] Armstrong v. United States, 13 Wall. 154, 156 (1872). In Brown v. Walker, 161 U.S. 591 (1896), the Court had said: "It is almost a necessary corollary of the above propositions that, if the witness has already received a pardon, he cannot longer set up his privilege, since he stands with respect to such offence as if it had never been committed." Ibid. 599, citing British cases.

[120] Biddle v. Perovich, 274 U.S. 480, 486 (1927).

[121] Cf. W.H. Humbert, The Pardoning Power of the President, American Council on Public Affairs (Washington, 1941) 73.

[122] 274 U.S. at 486.

[123] 23 Op. Atty. Gen. 363 (1901); Illinois Central R. Co. v. Bosworth, 133 U.S. 92 (1890).

[124] Ex parte Wells, 18 How. 307 (1856). For the contrary view see some early opinions of Attorney General, 1 Opins. Atty. Gen. 342 (1820); 2 ibid. 275 (1829); 5 ibid. 687 (1795); cf. 4 ibid. 453; United States v. Wilson, 7 Pet. 150, 161 (1833).

[125] Ex parte United States, 242 U.S. 27 (1916). Amendment of sentence, however, (within the same term of court) by shortening the term of imprisonment, although defendant had already been committed, is a judicial act and no infringement of the pardoning power. United States v. Benz, 282 U.S. 304 (1931).

[126] See Messages and Papers of the Presidents, I, 181, 303; II, 543; VII, 3414, 3508; VIII, 3853; XIV, 6690.

[127] United States v. Klein, 13 Wall. 128, 147 (1872). See also United States v. Padelford, 9 Wall. 531 (1870).

[128] Ex parte Garland, 4 Wall. 333, 380 (1867).

[129] F.W. Maitland, Constitutional History of England (Cambridge, 1903), 302-306; 1 Op. Atty. Gen. 342 (1820).

[130] 267 U.S. 87 (1925).

[131] Ibid. 110-111.

[132] Ibid. 121, 122.

[133] 4 Wall. 333, 381 (1867).

[134] Ibid. 380.

[135] Ibid. 396-397.

[136] 233 U.S. 51 (1914).

[137] Ibid. 59.

[138] 142 U.S. 450 (1892).

[139] Knote v. United States, 95 U.S. 149, 153-154 (1877).

[140] United States v. Klein, 13 Wall. 128, 143, 148 (1872).

[141] The Laura, 114 U.S. 411 (1885).

[142] Brown v. Walker, 161 U.S. 591 (1896).

[143] Farrand, II, 183.

[144] Ibid. 538-539.

[145] The Federalist No. 64.

[146] Farrand, III, 424.

[147] Washington sought to use the Senate as a council, but the effort proved futile, principally because the Senate balked. For the details see Corwin, The President, Office and Powers (3d ed.), 253-257.

[148] United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936).

[149] Corwin, The President, Office and Powers (3d ed.), 467-468.

[150] "Obviously the treaty must contain the whole contract between the parties, and the power of the Senate is limited to a ratification of such terms as have already been agreed upon between the President, acting for the United States, and the commissioners of the other contracting power. The Senate has no right to ratify the treaty and introduce new terms into it, which shall be obligatory upon the other power, although it may refuse its ratification, or make such ratifications conditional upon the adoption of amendments to the treaty." Fourteen Diamond Rings v. United States, 183 U.S. 176, 183 (1901).

[151] Cf. Article I, section 5, clause 1; also Missouri Pacific R. Co. v. Kansas, 248 U.S. 276, 283-284 (1919).

[152] See Samuel Crandall, Treaties, Their Making and Enforcement (2d ed., Washington, 1916), Sec. 53, for instances.

[153] Foster v. Neilson, 2 Pet. 253, 314 (1829). "Though several writers on the subject of government place that [the treaty-making] power in the class of executive authorities, yet this is evidently an arbitrary disposition; for if we attend carefully to its operation, it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either. The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the execution of the laws, and the employment of the common strength, either for this purpose, or for the common defence, seem to comprise all the functions of the executive magistrate. The power of making treaties is, plainly, neither the one nor the other. It relates neither to the execution of the subsisting laws, nor to the enaction of new ones; and still less to an exertion of the common strength. Its objects are contracts with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. The power in question seems therefore to form a distinct department, and to belong, properly, neither to the legislative nor to the executive." Hamilton in The Federalist No. 75.

[154] Head Money Cases, 112 U.S. 589, 598 (1884). For treaty provisions operative as "law of the land" ("self-executing"), see Crandall, Treaties (2d ed.), 36-42, 49-62 (passim), 151, 153-163, 179, 238-239, 286, 321, 338, 345-346. For treaty provisions of an "executory" character, see ibid. 162-163, 232, 236, 238, 493, 497, 532, 570, 589.

[155] See Crandall, Chap. III, 24-42.

[156] 3 Dall. 199 (1796).

[157] 3 Cr. 454 (1806).

[158] "In Chirac v. Chirac (2 Wheat. 259), it was held by this court that a treaty with France gave to her citizens the right to purchase and hold land in the United States, removed the incapacity of alienage and placed them in precisely the same situation as if they had been citizens of this country. The State law was hardly adverted to, and seems not to have been considered a factor of any importance in this view of the case. The same doctrine was reaffirmed touching this treaty in Carneal v. Banks (10 Wheat. 181) and with respect to the British Treaty of 1794, in Hughes v. Edwards (9 Wheat. 489). A treaty stipulation may be effectual to protect the land of an alien from forfeiture by escheat under the laws of a State. Orr v. Hodgson (4 Wheat. 458). By the British treaty of 1794, 'all impediment of alienage was absolutely levelled with the ground despite the laws of the States. It is the direct constitutional question in its fullest conditions. Yet the Supreme Court held that the stipulation was within the constitutional powers of the Union. Fairfax's Devisees v. Hunter's Lessee, 7 Cr. 627; see Ware v. Hylton, 3 Dall. 242.' 8 Op. Attys-Gen. 417. Mr. Calhoun, after laying down certain exceptions and qualifications which do not affect this case, says: 'Within these limits all questions which may arise between us and other powers, be the subject-matter what it may, fall within the treaty-making power and may be adjusted by it.' Treat. on the Const. and Gov. of the U.S. 204.

"If the national government has not the power to do what is done by such treaties, it cannot be done at all, for the States are expressly forbidden to 'enter into any treaty, alliance, or confederation.' Const., art. I. sect. 10.

"It must always be borne in mind that the Constitution, laws, and treaties of the United States are as much a part of the law of every State as its own local laws and Constitution. This is a fundamental principle in our system of complex national polity." 100 U.S. at 489-490.

[159] 100 U.S. 483 (1880).

[160] See also De Geofroy v. Riggs, 133 U.S. 258 (1890); Sullivan v. Kidd, 254 U.S. 433 (1921); Nielsen v. Johnson, 279 U.S. 47 (1929). But a right under treaty to acquire and dispose of property does not except aliens from the operation of a State statute prohibiting conveyances of homestead property by any instrument not executed by both husband and wife. Todok v. Union State Bank, 281 U.S. 449 (1930). Nor was a treaty stipulation guaranteeing to the citizens of each country, in the territory of the other, equality with the natives of rights and privileges in respect to protection and security of person and property, violated by a State statute which denied to a nonresident alien wife of a person killed within the State, the right to sue for wrongful death, although such right was afforded to native resident relatives. Maiorano v. Baltimore & O.R. Co., 213 U.S. 268 (1909). The treaty in question having been amended in view of this decision, the question arose whether the new provision covered the case of death without fault or negligence in which, by the Pennsylvania Workmen's Compensation Act, compensation was expressly limited to resident parents; the Supreme Court held that it did not. Liberato v. Royer, 270 U.S. 535 (1926).

[161] Terrace v. Thompson, 263 U.S. 197 (1923).

[162] 332 U.S. 633 (1948). See also Takahashi v. Fish and Game Comm., 334 U.S. 410 (1948), in which a California statute prohibiting the issuance of fishing licenses to persons ineligible to citizenship is disallowed, both on the basis of Amendment XIV and on the ground that the statute invaded a field of power reserved to the National Government, namely, the determination of the conditions on which aliens may be admitted, naturalized, and permitted to reside in the United States. For the latter proposition Hines v. Davidowitz, 312 U.S. 52, 66 (1941) was relied upon.

[163] This occurred in the much advertised case of Sei Fujii v. State of California, 242 P. 2d, 617 (1952). A lower California court had held that the legislation involved was void under the United Nations Charter, but the California Supreme Court was unanimous in rejecting this view. The Charter provisions invoked in this connection [Arts. 1, 55, and 56], said Chief Justice Gibson, "We are satisfied * * * were not intended to supersede domestic legislation".

[164] Clark v. Allen, 331 U.S. 503 (1947).

[165] 1 Cr. 103, 109 (1801).

[166] Foster v. Neilson, 2 Pet. 253, 314 (1829); Strother v. Lucas, 12 Pet. 410, 439 (1838); Edye v. Robertson (Head Money Cases), 112 U.S. 580, 598, 599 (1884); United States v. Rauscher, 119 U.S. 407, 419 (1886); Bacardi Corp. v. Domenech, 311 U.S. 150 (1940).

[167] The doctrine of political questions is not always strictly adhered to in cases of treaty interpretation. In the case of the "Appam" it was conspicuously departed from. This was a British merchant vessel which was captured by a German cruiser early in 1916 and brought by a German crew into Newport News, Virginia. The German Imperial Government claimed that under the Treaties of 1799 and 1828 between the United States and Prussia, the vessel was entitled to remain in American waters indefinitely. Secretary of State Lansing ruled against the claim, and the Supreme Court later did the same, but ostensibly on independent grounds and without reference to the attitude of the Department of State. The Steamship Appam, 243 U.S. 124 (1917). Although it is a principle of International Law that, as respects the rights of the signatory parties, a treaty is binding from the date of signature, a different rule applies in this country as to a treaty as "law of the land" and as such a source of human rights. Before a treaty can thus operate it must have been approved by the Senate. Haver v. Yaker, 9 Wall. 32 (1870).

[168] See Crandall, Treaties, Their Making and Enforcement, (2d ed.), 165-171, with citations.

[169] Madison Writings (Hunt ed.), 264.

[170] "We express no opinion as to whether Congress is bound to appropriate the money * * * It is not necessary to consider it in this case, as Congress made prompt appropriation of the money stipulated in the treaty" (the Treaty of Paris of 1899 between Spain and the United States). De Lima v. Bidwell, 182 U.S. 1, 198 (1901). For a list of earlier appropriations of the same kind, see Crandall, 179-180, n. 35.

[171] Willoughby, On the Constitution, I (2d ed., New York, 1929), 558. See also H. Rept. 2630, 48th Cong., 2d sess., for an exhaustive review of the subject.

[172] Edye v. Robertson (Head Money Cases), 112 U.S. 580, 598-599 (1884). The repealability of treaties by act of Congress was first asserted in an opinion of the Attorney General in 1854 (6 Op. Atty. Gen. 291). The year following the doctrine was adopted judicially in a lengthy and cogently argued opinion of Justice Curtis, speaking for a United States circuit court in Taylor v. Morton, 23 Fed. Cas. No. 13,799 (1855). The case turned on the following question: "If an act of Congress should levy a duty upon imports, which an existing commercial treaty declares shall not be levied, so that the treaty is in conflict with the act, does the former or the latter give the rule of decision in a judicial tribunal of the United States, in a case to which one rule or the other must be applied?"

Citing the supremacy clause of the Constitution, Justice Curtis said: "There is nothing in the language of this clause which enables us to say, that in the case supposed, the treaty, and not the act of Congress, is to afford the rule. Ordinarily, treaties are not rules prescribed by sovereigns for the conduct of their subjects, but contracts, by which they agree to regulate their own conduct. This provision of our Constitution has made treaties part of our municipal law. But it has not assigned to them any particular degree of authority in our municipal law, nor declared whether laws so enacted shall or shall not be paramount to laws otherwise enacted. * * * [This] is solely a question of municipal, as distinguished from public law. The foreign sovereign between whom and the United States a treaty has been made, has a right to expect and require its stipulations to be kept with scrupulous good faith; but through what internal arrangements this shall be done, is, exclusively, for the consideration of the United States. Whether the treaty shall itself be the rule of action of the people as well as the government, whether the power to enforce and apply it shall reside in one department, or another, neither the treaty itself, nor any implication drawn from it, gives him any right to inquire. If the people of the United States were to repeal so much of their constitution as makes treaties part of their municipal law, no foreign sovereign with whom a treaty exists could justly complain, for it is not a matter with which he has any concern. * * * By the eighth section of the first article of the Constitution, power is conferred on Congress to regulate commerce with foreign nations, and to lay duties, and to make all laws necessary and proper for carrying those powers into execution. That the act now in question is within the legislative power of Congress, unless that power is controlled by the treaty, is not doubted. It must be admitted, also, that in general, power to legislate on a particular subject, includes power to modify and repeal existing laws on that subject, and either substitute new laws in their place, or leave the subject without regulation, in those particulars to which the repealed laws applied. There is therefore nothing in the mere fact that a treaty is a law, which would prevent Congress from repealing it. Unless it is for some reason distinguishable from other laws, the rule which it gives may be displaced by the legislative power, at its pleasure. * * * I think it is impossible to maintain that, under our Constitution, the President and Senate exclusively, possess the power to modify or repeal a law found in a treaty. If this were so, inasmuch as they can change or abrogate one treaty, only by making another inconsistent with the first, the government of the United States could not act at all, to that effect, without the consent of some foreign government; for no new treaty, affecting, in any manner, one already in existence, can be made without the concurrence of two parties, one of whom must be a foreign sovereign. That the Constitution was designed to place our country in this helpless condition, is a supposition wholly inadmissible. It is not only inconsistent with the necessities of a nation, but negatived by the express words of the Constitution. * * *" See also The Cherokee Tobacco, 11 Wall. 616 (1871); United States v. Forty-Three Gallons of Whiskey, 108 U.S. 491, 496 (1883); Botiller v. Dominguez, 130 U.S. 238 (1889); Chae Chan Ping v. United States, 130 U.S. 581, 600 (1889); Whitney v. Robertson, 124 U.S. 190, 194 (1888); Fong Yue Ting v. United States, 149 U.S. 688, 721 (1893); etc. "Congress by legislation, and so far as the people and authorities of the United States are concerned, could abrogate a treaty made between this country and another country which had been negotiated by the President and approved by the Senate." La Abra Silver Mining Co. v. United States, 175 U.S. 423, 460 (1899). Cf. Reichert v. Felps, 6 Wall. 160, 165-166 (1868), where it is stated obiter that "Congress is bound to regard the public treaties, and it had no power * * * to nullify [Indian] titles confirmed many years before * * *"