power, with the advice and consent of the Senate, to remove an officer of the army, and appoint another in his place.1

SECTION III.

THE POWER AND DUTY OF THE PRESIDENT TO TAKE CARE THAT THE LAWS BE FAITHFULLY EXECUTED.

§ 662. I need not repeat the observations made in Section I. The Constitution vests in the President the sole executive power; it authorizes and requires him to take care that the laws are faithfully executed. His duties consist, as we have seen, partly in executing the provisions of the Constitution, in which he is independent of legislative control; and partly in taking care that the laws passed under and by virtue of the Constitution are executed. In exercising the latter function a greater or less degree of discretion may be left to him by the legislative act. These degrees may be arranged as follows: The statute may intrust to him the whole execution, so that whatever is done must issue from him not only in theory, but in fact; or the statute may authorize the creation of new offices, leave the appointment of the officers to the President, and prescribe the exact duties which they, when appointed, are to undertake and perform; or the statute may create new duties, prescribe their methods of performance, and intrust their execution to officers already in existence, who were appointed for some other or different purposes. In the first case the President has the whole power of execution in his own hands; in the second case he must take the initiative by appointing the officers, who, when appointed, have the whole power of execution in their own hands; in the third case he has no function whatever except that of taking care that the laws are faithfully executed.

1 Blake v. United States, 103 U. S. 227; Keyes v. United States, 109 U. S. 336. ED.

2 The President has no power to interfere with a public prosecution, except to put an end to it and discharge the accused; he has no power to change the proceedings nor the place of trial. United States v. Corrie, 1 Brunner's Coll. Cases, 686; 23 Law Reporter, 145. ED.

663. We are met, however, by the question, Whether in those forms of legislative enactment in which the President is clothed with a discretion, in which he is charged with the duty of taking the initiative, in which he is required, not only to take care that the laws be faithfully executed, but to execute them in whole or in part, whether in these cases he may determine for himself what are the laws; whether he may refuse to execute a certain statute or a certain decree of the national courts, on the ground that, while having the outward form of law, the statute or decree is not in fact law, but is void. Were our government modelled exactly after that of Great Britain, this question could not arise; whatever Parliament may ordain, must have the compulsive efficacy of law. But our written national Constitution, lying back of all departments of the government, creating them and defining their functions, renders it possible for any or all of them to exceed their legitimate powers; such excess will be absolutely void; the statute directing it will be no law, however formal and regular its manner of enactment may have been. May the President judge of this character, and refuse to execute all laws which he deems unconstitutional and void?

§ 664. I have already discussed this question in its more general statement in Part Second, and shall not here repeat the arguments and authorities therein relied upon. I shall only add some reasons peculiar to the President. The Chief Magistrate has the express power of objecting to a proposed statute by means of his veto. Armed with this weapon, he may oppose the passage of any act which he deems unconstitutional or even inexpedient. In most cases his objections will have power to defeat the measure; but he may be overruled by a vote of two thirds of the Congress. When this is done, or when the statute receives his assent, it certainly has the form of law, and the presumption must unquestionably be that it is valid. No one would contend that the President may now refuse to execute this statute on the ground that, in his opinion, it is inexpedient or impolitic. This would be to give. him the dispensing power which was so long claimed by the British crown, and so vigorously resisted by the English peo

ple. The legislative function is given to Congress; and if the statute be within the grants of the Constitution, and be passed according to the forms required by that Constitution, the President, aside from his power to accord or withhold his consent, has no responsibility for or control over its mere policy or expediency. Every writer on the public law, and every practical statesman, will concede the correctness of this position.

§ 665. But the conclusion thus reached is entirely independent of the further inquiry whether the President may still judge of the validity of the law on constitutional grounds. As a general rule, applicable in a great majority of cases, he cannot thus exercise an independent judgment. This opinion has been maintained by most American publicists and statesmen, although its correctness has been denied by political writers of no small reputation and ability. The arguments of those who assert the President's absolute power to pronounce upon the validity of a law, are based on two provisions of the Constitution. He is to take care that the laws are faithfully executed. It is said that he must only execute the laws, and not those legislative acts which have a legal semblance merely, but are void. An unconstitutional statute is no more a law than though it had never been passed, and the President has no power whatever to execute this nullity. Again: the President is compelled to take the following oath: "I do solemnly swear that I will faithfully execute the office of President of the United States, and will, to the best of my ability, preserve, protect, and defend the Constitution of the United States." It is said this oath imposes on the President a personal and peculiar responsibility; that he is to be guided by his own judgment, by his own conviction of what is lawful, and not by the judgments and convictions of any other per

sons.

§ 666. These arguments, though not without a certain de gree of plausibility, are of little weight. They either prove too much, or they beg the whole question. The senators and representatives, the members of state legislatures, and all executive and judicial officers of the states and of the nation,

are also required to take an oath to support the Constitution. The President's cath is but an amplification of this; it enters into more detail, but does not add another compulsive clause. The solemn promise in particulars "to preserve, protect and defend the Constitution," does not imply more than the equally solemn promise in generals "to support" it. The former is no more binding upon the President's conscience, than is the latter upon that of every ministerial, legislative, and judicial officer: the sanction of the former does not more rigidly restrain the President in the discharge of his high public duties, than does the sanction of the latter hold all other officers to a strict accountability in the performance of their special functions. If the President, therefore, receives from the terms of his oath a power to judge independently as to the validity of a statute, to the same extent and for the same reason, every legislative, executive, and judicial officer of the states and of the nation, acquires the same power to construe and interpret the organic law for himself. Indeed the instances have not been wanting where subordinate officials have asserted their claim to this authority. Should such a practice become general, anarchy would immediately take the place of a well ordered government.

§667. When it is said that the President is only bound to execute the laws, and not void statutes, and that he must therefore decide for himself, and refuse to enforce those enactments which he deems to be unconstitutional, this is assuming the very point in dispute. The question really is, are the laws in controversy valid or void; and giving him the power to decide this question is to make him the sole dispenser of statutes; it is to introduce immediate confusion into the whole machinery of government; it is to set the Executive against the Legislature, or against the Judiciary. Of course, if the law is void, it is not to be executed; this is conceded. But who is to determine this question? It can only be the Judiciary; and their decision, as long as it stands unreversed, is final and compulsive upon the President. The statute having passed through the prescribed forms of legislation, is to be taken as presumptively valid; it certainly carries with it the

prima facie character of legality, and until declared a nullity by the proper courts, should be treated as binding, and should be faithfully executed. In fact, there are many legislative enactments where the President must take the initiative, and commence to execute, or they will remain a dead letter; he must move, or no one else can, and thus no opportunity can arise for a judicial decision upon their validity. If the President may determine for himself, and refuse to execute, his action would be final; no person affected by such statutes could establish any rights thereunder. Another large class of laws, however, can be set in motion by private persons or subordinate officers, and thus their legality may be presented to the judicial tribunals for discussion and judgment.

§ 668. To the general rule stated in the foregoing paragraphs, there are, I think, two important exceptions. A statute may be passed of such a form and character as to be addressed directly to the President; it assumes to regulate his official action; no private person and no subordinate officer is affected by its provisions. If the Chief Magistrate enforces this law, no question as to its validity can be raised, no opportunity can be given to deny the power of the legislature. It is only by a refusal to execute such a statute that the Presi dent can possibly create an issue between himself and Congress; so long as ne continues to carry out its mandates, it must be taken as legal. In such a case the President, unless he chooses to acquiesce, may plainly exercise an independent judgment, and act upon his own separate convictions. To illustrate So long as the Executive obeys the recent act of Congress in relation to removals from office, and appointments thereto, the statute must be taken as valid; no officer removed or appointed can complain, for his rights have not been im paired. The law, therefore, must stand unquestioned, unless the President should disregard its commands and proceed to remove from office without consulting the Senate.

Again it is possible to conceive the case that Congress should pass a statute which was plainly opposed to the very letter of the Constitution; concerning which there could be no doubt or difference of opinion; which was, in fact, an act of