ARTICLE II-EXECUTIVE DEPARTMENT. Section 1.-THE PRESIDENT. Clause 1.-TERM OF OFFICE. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows: Leading Cases Kendall v. U. S. (12 Pet. 610), holding that as far as his power is derived from the Constitution the President is beyond the reach of any other department of the Government with the single exception prescribed by the Constitution for his impeachment. Marbury v. Madison (1 Cranch 166), in which it was held that Where the heads of departments are the political or confidential agents of the Executive, merely to execute the will of the President, or, rather, to act in cases in which the Executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy. Runkle v. U. S. (122 U. S. 557), holding that in the exercise of his Executive powers under the Constitution the President may act through the heads of the appropriate executive departments, and their official acts done in the regular course of official business are presumed to be his acts. Executive Powers In General Under the Constitution certain political powers are vested in the President which are to be exercised by him in his discretion without any hindrance or control on the part of the judiciary, and in the performance of any act involving the exercise of discretion the Executive is exempt from mandamus or injunction. Nor is the President subject to the writ of habeas corpus. Marbury v. Madison, 1 Cranch 169. Mississippi v. Johnson, 4 Wall. 500. In re Keeler, Hemp. 306. See also In re Kaine, 14 How. 119. Board of Liquidation v. McComb, 92 U. S. 541. Craig v. Leitensdorfer, 123 U. S. 211. Quackenbush v. U. S., 177 U. S. 25. Georgia v. Stanton, 6 Wall. 77. Boynton v. Blaine, 139 U. S. 319. Keim v. U. S., 177 U. S. 293. Sec. 1.-The President Cl. 1.-Term of Office The President properly acts through the heads of the several departments of the executive branch of the Government in relation to the subjects appertaining to their respective duties, and the acts of such department heads are deemed to be the acts of the President himself. The discretionary acts of executive departments are exempt from judicial control. Williams v. U. S., 1 How. 298. Wilcox v. McConnel, 13 Pet. 513. See also Runkle v. U. S., 122 U. S. 557. Carrick v. Lamar, 116 U. S. 426. Instances of acts which the courts have held to be discretionary are to be found in: Decatur v. Paulding, 14 Pet. 517. Brashear v. Mason. 6 How. 101. Reeside v. Walker, 11 How. 290. U. S. v. Seaman, 17 How. 230. U. S. v. Guthrie, 17 How. 304. Commissioner of Patents v. Whiteley, 4 Wall. 534. Gaines v. Thompson, 7 Wall. 350. Secretary v. McGarrahan, 9 Wall. 312. U. S. v. Black, 128 U. S. 45. U. S. v. Lynch, 137 U. S. 286. Redfield v. Windom, 137 U. S. 643. A distinction is to be made between those acts which involve the exercise of judgment or discretion, and those in which the duty is merely ministerial. In the latter class of acts the duty is one "imposed by law, peremptorily and plainly defined." When these acts are in question the officer is required to abandon his right to exercise his personal judgment, and the performance of the act may be compelled or forbidden as the right appears to the court. Marbury v. Madison, 1 Cranch 173. Knox County v. Aspinwall, 24 How. 376. International Contracting Co. v. Lamont, 155 U. S. 308. Gaines v. Thompson, 7 Wall. 352. U. S. v. Schurz, 102 U. S. 395. Noble v. Union, etc., R. Co., 147 U. S. 171. Political Questions Political questions are always matters of discretion, and as to these the courts dislaim any right of control, and when the executive department has not parted with its power over a political matter the intervention of the judicial department can not be invoked. Of a political nature are questions relating to the recognition of the existence of an Indian tribal relation; the public character of a person claiming to be a foreign minister; Sec. 1.-The President Cl. 1.-Term of Office the fixing of the date when foreign jurisdiction over acquired territory ceases; whether or not a State constitution or an amendment thereof has been ratified by the people; whether military authority has been established; how long military occupation of territory shall be necessary; the question as to the existence of a treaty; the recognition of sovereignty of foreign States; the determination of disputed boundaries between the United States and a foreign nation; the regulation of the admission of foreigners. Marbury v. Madison, 1 Cranch 169. U. S. v. Holliday, 3 Wall. 407. U. S. v. Palmer, 3 Wheat. 634. De la Croix v. Chamberlain, 12 Wheat. 600. See also Foster v. Neilson, 2 Pet. 307. In re Cooper, 143 U. S. 503. The Divina Pastora, 4 Wheat. 63. The Santissima Trinidad, 7 Wheat. 283. Kennett v. Chambers, 14 How. 50. U. S. v. Yorba, Wall. 423. Phillips v. Payne, 92 U. S. 132. Jones v. U. S., 137 U. S. 212. Garcia v. Lee, 12 Pet. 516. U. S. v. Reynes, 9 How. 154. It is the duty of the President to see that the laws are faithfully executed, and injunction will not lie to prevent him or his officers from enforcing them. The enforcement of the constitutional guaranty of a republican form of government belongs to the political department. The obligation conferred upon the President to see the laws faithfully executed does not confer any power to forbid their execution. Mississippi v. Johnson, 4 Wall. 501. While Congress can not delegate to the President power to make a law, with discretion as to what it shall be, yet it may confer upon him authority or discretion as to its execution, to be exercised in pursuance of its provisions. Thus a provision authorizing the President to suspend the provisions of a tariff act is unobjectionable, and this is true of an act regulating the manufacture of oleomargarine and authorizing the Commis Sec. 1.-The President Cl. 1.-Term of Office sioner of Internal Revenue to make regulations concerning marks and brands. A question not necessarily judicial may by statute be submitted to executive officers. If the President assumes powers which should have the authorization or sanction of Congress, a ratification cures the defect. Congress may impose on an executive officer any duty which is not repugnant to any right secured and protected by the Constitution. Field v. Clark, 143 U. S. 693. In re Kollock, 165 U. S. 536. Fong Yue Ting v. U. S., 149 U. S. 714. Marbury v. Madison, 1 Cranch 169. Represented by Heads of Departments The President in the exercise of his executive power under the Constitution may act through the head of the appropriate executive department. The heads of departments are his authorized assistants in the performance of his executive duties, and their official acts, promulgated in the regular course of business, are presumptively his acts. Wilcox v. McConnel, 13 Pet. 498. See also Wolsey v. Chapman, 101 U. S. 755. U. S. v. Eliason, 16 Pet. 291. The Secretary of the Navy represents the President and exercises his power on the subjects confided to his department. U. S. v. Jones, 18 How. 95. A certificate of the Secretary of War in the following form: "War Department, July 24, 1872. In conformity with the 65th of the Rules and Articles of War, the proceedings of the general court-martial in the foregoing case have been forwarded to the Secretary of War for the action of the President. The proceedings, findings, and sentence are approved, and the sentence will be duly executed. Wm. W. Belknap, Secretary of War," was held to be a sufficient authentication of the judgment of the President. U. S. v. Fletcher, 148 U. S. 86. See also In re Chapman, 166 U. S. 670. Ex parte Reed, 100 U. S. 13. Clause 2.-ELECTORS. Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to Sec. 1.-The President Cl. 2.-Electors which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. Electors are Not Officers of United States The sole function of the presidential electors is to cast, certify, and transmit the vote of the State for President and Vice President of the Nation. Although the electors are appointed and act under and pursuant to the Constitution of the United States, they are no more officers or agents of the United States than are the members of the State legislatures when acting as electors. In re Green, 134 U. S. 379. Discretion of State as to Manner of Appointing Electors It is competent for a State legislature to provide for the election of an elector and an alternate elector in each of the congressional districts into which the State is divided, and of an elector and an alternate elector at large in each of two districts defined by the statute. The court said in McPherson v. Blacker (146 U. S. 25) that this clause of the Constitution does not read that the people or the citizens shall appoint, but that "each State shall;" and if the words "in such manner as the legislature thereof may direct" had been omitted it would seem that the legislative power of appointment could not have been successfully questioned in the absence of any provision in the State constitution in that regard. Hence the insertion of those words, while operating as a limitation upon the State in respect of any attempt to circumscribe the legislative power, can not be held to operate as a limitation on that power itself. Matters Within Control of Congress Congress is empowered to determine the time of choosing the electors and the day on which they are to give their votes, which is required to be the same day throughout the United States, but otherwise the power and jurisdiction of the States is exclusive, with the exception of the provisions as to the number of electors and the ineligibility of certain persons, so framed that congressional and Federal influence might be excluded. McPherson v. Blacker, supra, at page 35. Clause 3-ELECTION. [The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the 12703°-S. Doc, 157, 68-1-28 |