(But what shall we say of powers of ordinance making dele

gated by Congress to the heads of departments without any mention of the President? Is he legally as well as politically responsible for the performance of such duties by his subordinates? And, what is of more practical importance, can he constitutionally control the exercise of the discretion thus reposed in them by the legislative department?,

On the one side of the issue we have the opinion of Attorney General Cushing to the following effect:

12

Take now the converse form of legislation, that common or most ordinary style, in which an executive act is, by law, required to be performed by a given Head of Department. I think here the general rule to be as already stated, that the Head of Department is subject to the direction of the President. I hold that no Head of Department can lawfully perform an official act against the will of the President; and that will is by the Constitution to govern the performance of all such acts.

And again, the attorney general says:

Now, all these multiform acts are under the constitutional direction of the President. In legal theory, they are his acts. But a large proportion of them are performed by his general direction without any special direction.

On the other hand we have the following facts: the executive departments are creatures, not of the Constitution directly,18 but of Congressional statutes; 14 while the functions, powers, and duties of the heads of such departments are defined by Congress, in broad general terms or minutely, as to it seems best. In view of these facts might it not be argued, that, while practically the President can control the heads of departments through his power of removal, yet in law they are subject to Congress and not to him?

Now it will be admitted, as indeed the Supreme Court has indicated, that obedience should be rendered by such officers to the mandates of the statutes rather than to the orders of

127 Opin. of the Attys. Gen. 453 (1855).

13 Neither departments of administration nor departmental heads are specifically provided for in the Constitution. That they will be set up is implied from incidental references to the latter in that document.

14 Under the necessary and proper' clause of the federal Constitution.

the Chief Executive where the two are in conflict. Laws are in our system of superior obligation to executive directions; and all executive officers from the President down are morally bound to obey the law where it is specific and mandatory. The Supreme Court has said: 15

There are certain political duties imposed upon many offices 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.

And again in the same opinion:

It was urged at the bar, that the postmaster general was alone subject to the direction and control of the President, with respect to the execution of the duty imposed upon him by this law; and this right of the President is claimed, as growing out of the obligation imposed upon him by the constitution, to take care that the laws be faithfully executed. This is a doctrine that cannot receive the sanction of this court. It would be vesting in the President a dispensing power, which has no countenance for its support in any part of the constitution; and is asserting a principle, which, if carried out in its results, to all cases falling within it would be clothing the President with a power to entirely control the legislation of Congress, and paralyze the administration of justice.

In like tenor was the opinion expressed in Congressional Government 16 by the late President Wilson:

No one, I take it for granted, is disposed to disallow the principle that the representatives of the people are the proper ultimate authority in all matters of government, and that administration is merely the clerical part of government. Legislation is the originating force. It determines what shall be done; and the President, if he cannot or will not stay legislation by the use of his extraordinary power as a branch of the legislature, is plainly bound in duty to render unquestioning obedience to Congress. And if it be his duty to obey, still more is obedience the bounden duty of his subordinates. The power of making laws is in its very nature and essence the power of directing, and that power is given to Congress. The principle is without drawback, and is inseparably of a piece with all AngloSaxon usage.

But not only is it the moral duty of President and heads of departments to obey the laws. For the latter, though, not

15 Kendall v. United States, 12 Pet. 524.

16 Pages 273-274.

to be sure, for the former, it is a legal duty which is enforceable in the courts by mandamus, provided the act to be performed is ministerial in character. The duty was actually enforced against the postmaster general in Kendall v. United States.1

17

How then shall we reconcile the opinion of Cushing, and the fact that through the power of removal the President has in practice a power of control, with the decision in the Kendall case? In the first place, that decision renders too broad the declaration of the attorney general that "no Head of Department can lawfully perform an official act against the will of the President." For the fact that the President ordered the postmaster general not to perform the ministerial act in question would not affect the power of the court to compel by mandamus the performance of such act if it were positively commanded by statute.

The real distinction is between a mandatory duty to perform a non-discretionary act and the permissive power to perform a discretionary act.18 The latter of course includes the discretionary formulation of a uniform rule creating rights and duties. The former is a duty over the performance of which the President has no control, because, while he can remove an officer who performs or threatens to perform it, the actual performance will, in a proper case, be compelled by the courts. But discretion by its very nature involves, as we have seen, a choice of alternatives. If and when Congress sees fit to delegate to the head of a department a discretionary power, this means that that body leaves to such officer a choice; and since there is no judicial means of compelling the exercise of such a choice, it means further that Congress not only delegates a choice as to the content of the rule, but also makes it at the most a moral duty to exercise the choice at all.19 For where there is no means of enforcement there

17 12 Pet. 524; cf. United States v. Black, 128 U. S. 40; see also Marbury v. Madison, 1 Cr. 137.

18 Including the ordinance making power.

19 On this particular point compare the words used by the Court in United States v. Black, 128 U. S. 40, and in Dunlap v. United States, 173 U. S. 65.

is no legal duty. And, by the same token, whether the power of removal be derived from the Constitution in such a manner as to be beyond the control of Congress or not, so long as the supreme law or the statutory law allows to the Chief Magistrate a power of removal,20 it allows to him, within certain limits, not only a practical, but also a legal, power of ‘administrative control' over acts of department heads which involve a choice.21 Those limits are set by the extent to which the courts can, in the several forms of action at law or in equity, control abuse of power, or fraud, or excess of jurisdiction, or 'vice of form,' in the exercise of discretion, or by mandamus compel its exercise in some manner. Within those limits the fact that the law allows the President a method of control must be deemed to constitute a recognition of his legal right to control. In this manner it comes about that not only may the President, in most cases, allow the heads of departments to issue his ordinances for him, but conversely he may control the performance by them of their own ordinance making powers. Congress may specify that he or the head of the proper department must perform the act. But, after all, that requirement, while it may be necessary to follow it to make the act valid, is reducible to a matter of form. In all cases the act is the act of the President in contemplation of law; while it is jointly the act of the President and the head of the

20 For evidence that in 1789 it was held by Madison and others, and finally accepted by Congress, that the vesting in the President of the executive power' carries with it the power of removal, see Thach, The Creation of the Presidency, chap. vi.

21 This does not involve that correlative right of appeal' to the President which ordinarily flows from the power of direction' vested in a superior officer. The reason for this is that the act of the subordinate is ordinarily the act of the President, in the eyes of the law. What is here involved is a power rather of 'administrative control' which flows directly from the President's power of removal, which is, in turn, a result of his executive power.' To put the matter somewhat differently: the executive power' vested in the President means essentially a power of administrative control, and this implies a power of removal, as a necessary 'administrative sanction.' Such an administrative sanction is all the more needed because there is in such cases no 'judicial sanction' (see White v. Berry, 171 U. S. 366. On the matter of appeals to the President, see 10 Opin. of Attys. Gen. 527, and 15 Opin. of Attys. Gen. 94).

department if the latter formally participates. Any legal consequences fall upon the President 22 in all cases, and upon

the subordinate in the latter class of cases.

In the writings of President Benjamin Harrison 23 we have at once evidence and a clear statement of this 'administrative control':

The responsibility under the Constitution for the Executive administration of the Government in all its branches is devolved upon the President.

And again: 24

In all important matters the President is consulted by all the Secretaries. He is responsible for all executive action, and almost everything that is out of the routine receives some attention from him. . . . Routine matters proceed without the knowledge or interference of the President; but, if any matter of major importance arises the Secretary presents it for the consideration and advice of the President. . . . There should be no question of making a 'mere clerk' of the Cabinet officer; there is a yielding of views, now on one side, now on the other; but it must, of course, follow that when the President has views that he feels he cannot yield, those views must prevail, for the responsibility is his, both in a Constitutional and popular sense.

There are thus specific constitutional and practical reasons why the ordinance making powers of the heads of departments are to be treated as in large measure but part of the ordinance making powers of the President. There is no sharp distinction between them in government in operation or in most cases in the eyes of the law. In a sense all federal ordinances are potential Presidential ordinances. This is true, despite the fact that an otherwise valid ordinance issued by the head of the department authorized by law to issue it would be valid, even if he issued it in defiance of the President's actual

22 Of course, this legal responsibility can be enforced, while the President is in office, only by impeachment for misconduct in this connection. No court, not even the Senate while trying an impeachment, can enforce a writ against the person of the President during his tenure of office. The President is, in a word, immune from personal service. (See Burgess, Political Science and Comparative Constitutional Law, vol. ii, p. 245.) Might he properly be impeached for department ordinances of which he had no actual knowledge?

23 This Country of Ours, p. 70.

* Ibid., pp. 105-107.