The peculiar position of the State Department. to remove for any other reason which he, acting with a due sense of his official responsibility, should think sufficient. It is true that, under this construction, it is possible that officers may be removed for causes unconnected with the proper administration of the office. That is the case with most of the other officers in the government. The only restraint in cases such as this must consist in the responsibility of the President under his oath of office, to so act as shall be for the general benefit and welfare. 80. The Executive Departments and Congress * Whatever may be the theory about the separation of powers and the independence of the executive, it remains a fact that the executive departments and their principal officers " are the creatures of the laws of Congress, exercising only such powers and performing only such duties as those laws prescribe." The relation of the departments to Congress is thus described by Senator Spooner in a speech delivered in the Senate. I agree entirely with what the Senator from Colorado says: "That we are in the habit of passing resolutions directing the heads of all the departments except that is my own qualification except the State Department - the Secretary of Stateto answer interrogatories and to send to the Senate information indicated in such resolutions." Often I have, where a resolution was in the form "requested," suggested that the word "requested" be stricken out and that the word "directed" be substituted, but I have not known an instance since I have been a member of the Senate in which the Senate has directed the Secretary of State to forward to the Senate copies of diplomatic correspondence, instructions to ministers or to agents appointed by the President to negctiate treaties. It has always been, so far as my memory goes, in form a "request" to the President to transmit, if not, in his judgment, incompatible with the public interest. And there is a reason, Mr. President, for this distinction in the form of directing the Department of State and other Departments. No one will 1 See above, p. 178. dispute for a moment that the conduct of our foreign affairs is, under the Constitution, entirely in the hands and under the control, of the President, and there never has been written a book on the Constitution Story, Rawle, Kent, Pomeroy - any book upon the subject which has not emphasized the fact, which is apparent to thoughtful men, that the conduct of our foreign relations, instructions by the President to ministers and other diplomatic agents, require and involve in the interests of the country, more or less of secrecy. between the Department of State and other The other Departments of the Government perform very many Distinction. duties imposed primarily by Congress, dealing entirely with our domestic affairs, and therefore the distinction which, as I understand, has always been observed, and which I think ought to be observed, between the other Departments of the Government and the Department of State, so far as it relates to instructions given to and correspondence with diplomatic agents of the United States, ambassadors, ministers, and senators. The Cabinet is not the mere retinue of the President; the Cabinet taken as a body is not merely the official family of the President. We impose duties every day during the session of Congress by law upon the Cabinet officers which it is beyond the power of the President by any instruction of his to pretermit obedience to. The Constitution recognizes Cabinet officers. It deals with them or characterizes them as "Heads of Departments." It authorizes us - and when I say us I mean Congress - to vest in them the appointment of inferior officers; and in the discharge of that function they are as independent of the order or control of the President, theoretically at least, as if they were entirely independent of the President in other respects. The statute books are full of duties imposed and orders made by the Congress to be executed by this member of the Cabinet, or that member, or the other. But I draw the line only as to the Secretary of State, so far as his functions relate to diplomatic correspondence and to that domain of duty in which he acts under the Constitution, and can act under the Constitution only by order of the President, and cannot act by order of the Congress. Departments Congress duties of defines the Cabinet officers. The statement of the problem. Principles laid down in other cases. 81. The Power of Administrative Officials to Decide Cases Affecting Life, Liberty, and Property* It is a theory of our constitutional law that the courts are the proper resort of citizens or persons claiming that their rights have been infringed by public officers. However, with the multiplication of official duties connected with immigration, commerce, and taxation, it was found necessary to give to administrative, i.e., nonjudicial officers, large powers in deciding finally cases affecting the rights of persons. The question was speedily raised whether administrative officials could constitutionally exercise semi-judicial functions, and the Supreme Court answered it in the affirmative, in the following case, holding that due process of law does not require judicial trial.1 In a habeas corpus proceeding in a District Court of the United States instituted in behalf of a person of Chinese descent being held for return to China by the steamship company which recently brought him therefrom to a port of the United States and who applied for admission therein on the ground that he was a native born citizen thereof but who, after a hearing, the lawfully designated immigration officers found not born therein and to whom they denied admission, which finding and denial, upon appeal to the Secretary of Commerce and Labor was affirmed — should the court treat the finding and the action of such executive officers upon the question of citizenship and other questions of fact as having been made by a tribunal authorized to decide the same and as final and conclusive unless it be made affirmatively to appear that such officers, in the case submitted to them, abused the discretion vested in them or in some other way in hearing and determining the same committed prejudicial error? The broad question is presented whether or not the decision of the Secretary of Commerce and Labor is conclusive. In the Japanese Immigrant Case (Yamataya v. Fisher), 189 U. S., 86, 97, it was said: "That Congress may exclude aliens of 1 For an excellent article on the subject, see The Political Science Review, Vol. I, 583 ff., an article by Thomas Reed Powell. a particular race from the United States; prescribe the terms and conditions upon which certain classes of aliens may come to this country; establish regulations for sending out of the country such aliens as come here in violation of the law; and commit the enforcement of such provisions, conditions, and regulations exclusively to executive officers without judicial intervention, are principles firmly established by the decisions of this court." In Fok Young Yo v. United States, 185 U. S., 296, 304, 305, it was held that the decision of the collector of customs on the right of transit across the territory of the United States was conclusive, and, still more to the point, in Lem Moon Sing v. United States, 158 U. S., 538, where the petitioner for habeas corpus alleged facts which, if true, gave him a right to enter and remain in the country, it was held that a decision of the collector was final as to whether or not he belonged to the privileged class. In view of the cases which we have cited it seems no longer open to discuss the question propounded as a new one. Therefore we do not analyze the nature of the right of a person presenting himself at the frontier for admission. But it is not improper to add a few words. The petitioner, although physically within our boundaries, is to be regarded as if he had been stopped at the limit of our jurisdiction and kept there while his right to enter was under debate. If, for the purpose of argument, we assume that the Fifth amendment 1 applies to him and that to deny entrance to a citizen is to deprive him of liberty, we nevertheless are of the opinion that with regard to him due process of law does not require a judicial trial. That is the result of the cases which we have cited and the almost necessary result of the power of Congress to pass exclusion laws. That the decision may be entrusted to an executive officer and that his decision is due process of law was affirmed and explained in Hishimura Ekiu v. United States, 142 U. S., 651, 660. 1 See above, p. 137. Due process of law does not require judicial trial. The effect of a fraud order. Nature of post-office inquiries. The great extent of the fraudorder business. 82. The Fraud Orders of the Post-office Department* Another example of the way in which private rights are subjected to administrative discretion without relief by judicial process is afforded by the right of the Postmaster-General to exlude summarily from the mails anything that he may deem fraudulent. The following attack made in Congress on this practice indicates the dangers of carrying the powers of administrative officials too far. The Supreme Court has held that the fraud-order power may be conferred upon the Postmaster-General because the right to the mail is a privilege and not a vested right, and that the proceeding is not criminal in its character. While this may be the correct constitutional theory, yet the party against whom a fraud-order is issued is branded as a criminal and stigmatized as a perpetrator of fraud. It makes him an outlaw as far as one of the most important branches of the Government is concerned. The issuance of such an order covers all his mail and deprives him of the right to communicate with his friends, his wife, or his mother, or to receive any communication from them by means of the mails. All of this is done upon confidential reports, the result of secret investigations based upon ex parte statements of persons whose motives cannot be known, who may be responsible or who may be irresponsible, who may not be competent witnesses, and who are not sworn and do not carry the responsibilities of ordinary witnesses. Their names and identity are not disclosed, and their evidence does not contain one single safeguard against fraud or one single test of credibility. Such evidence would not be received in the humblest magistrate's court of the country in a case involving the investigation of the most inconsequential right of person or property. The investigation and decision of fraud-order cases under the practice in the Department is necessarily made by the Assistant Attorney-General. During the two years ending June 30 last, 660 fraud orders were issued and a number of cases investigated |