gress the power to pass all laws necessary and proper not only for carrying out its own powers, but also the powers of all other departments and officers of the government. This precludes the President from the exercise of legislative powers as a means of carrying out his own powers,35 as distinguished from legislative powers which are part and parcel of his express powers. The latter, we have seen, he can exercise. And it would appear that he is limited to this, except where the Congress delegates to him ordinance making powers. He is given the duty to see that the laws are faithfully executed; and it is under this clause, as we shall see, that he can issue regulations under statutory authority.38 This question, however, was never squarely faced by the statesmen of the period of adoption; and such bits of evidence as we have of their views must be postponed for a later chapter. "See chap. ix below. There are, to be sure, exceptions sometimes made to the absolute statement in the text that one department may not perform powers which come within the range of the powers of another department (see Goodnow, Principles of the Administrative Law of the United States, pp. 37-41, for state cases). But these exceptions cannot be safely built into a generalization. They are special exceptions based at bottom on common sense; and for our purposes may be ignored, except where they involve ordinances. se When it is said that the exercise of legislative powers by the President is excluded from our constitutional system, it must be remembered that this means legislative powers as the term was understood in 1789. Thus while it is perfectly clear that Congress has no right under our system to transfer its legislative discretion to the President, the question arises whether the term legislative powers necessarily implied the enactment by Congress itself of every detail, or whether it meant either the laying down of detailed regulations, or the enactment of general principles and provision for the concretizing thereof by the Executive, as the one or the other method should in each case appear to the legislature as best. In a later chapter we shall argue that the term has only the latter implication. Congress can delegate discretion as to subordinate premises (not full discretion in the premises) under the necessary and proper' clause; the President can act under such delegations under the 'faithful execution' clause (See chap. vi). CHAPTER VI CONSTITUTIONAL BASIS AND SCOPE OF THE DElegated ORDINANCE MAKING POWERS OF THE PRESIDENT The Constitution of the United States is not a mere lawyers' document: it is a vehicle of life, and its spirit is always the spirit of the age. Its prescriptions are clear and we know what they are; a written document makes lawyers of us all, and our duty as citizens should make us conscientious lawyers, reading the text of the Constitution without subtlety or sophistication; but life is always your last and most authoritative critic. As the life of the nation changes so must the interpretation of the document which contains it change, by a nice adjustment, determined, not by the original intention of those who drew the paper, but by the exigencies and the new aspect of life itself. -WOODROW WILSON.1 We must never forget, that it is a constitution we are expounding. -CHIEF JUSTICE MARSHALL. Whatever the logical difficulties, the fact remains that there is a broad twilight zone between the field of what is distinctly and exclusively legislative and what is necessarily executive in character; that courts have recognized that matters within this 'no man's land' may be expressly authorized by statute for administrative action; and if neither of these steps is taken such action has been, under some circumstances, assumed as an inherent executive or administrative power. -FAIRLIE. It will not be contended that Congress can delegate to the courts, or to any other tribunals, powers which are strictly and exclusively legislative. But Congress may certainly delegate to others powers which the legislature may rightfully exercise itself. The line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions to fill up the details. It is, undoubtedly, proper for the legislature to prescribe the manner in which those ministerial offices shall be performed, and this duty will never be devolved on any other department without urgent reasons. But, in the mode of obeying the mandate of a writ issuing from a court, so much of that which may be done by the judiciary, under 1 Constitutional Government in the United States, pp. 69-70. Cf. pp. 157-158, 169-170, 192, 193, and chap. vii. McCulloch v. Maryland, 4 Wheat. 407. "Administrative Legislation," in Michigan Law Review, January, 1920. the authority of the legislature, seems to be blended with that for which the legislature must expressly and directly provide, that there is some difficulty in discerning the exact limits within which the legislature may avail itself of the agency of its courts. -CHIEF JUSTICE MARSHALL. 4 Contemporanea expositio est optima et fortissima in lege. That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution. -MR. JUSTICE HARLAN.5 The maxim that a legislature may not delegate legislative power has some qualifications, as in the creation of municipalities, and also in the creation of administrative boards to apply to the myriad details of rate schedules the regulatory police power of the state. The latter qualification is made necessary in order that the legislative power may be effectively exercised. -MR. CHIEF JUSTICE TAFT." The true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made. -JUDGE RANNEY." I We may now turn to an examination in detail of the legal aspects of our subject. The first question that arises in this connection is the constitutional authority by which the legislative department may make delegations of rule-making powers to the President. In view of the provision of the fifth amendment that no person shall "be deprived of life, liberty, or property, without due process of law," of the fundamental constitutional principle delegata potestas non potest delegari,8 and of the basic constitutional doctrine of Wayman v. Southard (10 Wheat. 1). The quotation was mere dictum, however. Б Field v. Clark, 143 U. S. 649. Wichita R. R. & Light Co. v. Public Utilities Commission of Kansas, 260 U. S. 48. Cincinnati, Wilmington, etc., Railroad v. Commissioners, 1 Ohio St. 88; cf. 21 Penn St. 188, 202; 72 Penn. St. 491, 498. "The maxim occurs also in the following forms: (1) delegatus the separation of powers, is Congress acting within the scope of its legitimate authority when it confers upon the Executive powers of a legislative nature? Let us first consider the bearing of the due process clause upon the matter. In the first place, where the regulations which the President is authorized to make have to do solely with the functioning of the administration, and not in any direct way with private rights of individuals, such administrative ordinances being enforceable only by removal from office and not by criminal penalties for disobedience, there is no deprivation of life, liberty, or property in the constitutional sense. It is clear, then, that the clause in question does not operate to prevent ordinary Presidential Verwaltungsverordnungen. In the second place, with regard to authorizations of Rechtsverordnungen, we must bear in mind that the term due process is a broad generalization which the Supreme Court of the United States has in more than one case interpreted as not necessarily requiring the historical procedural methods embodied in our particular system of the common law. Among the jurists of this generation in America there is noticeable a division into two schools of thought with respect to constitutional interpretation. The one school holds that while specific provisions are subject to judicial enforcement in accordance with the meaning which they had at the time the Constitution was adopted, general expressions like the fifth amendment must be reinterpreted in terms of the conditions and ideas of each generation.10 According to this view, to limit Congress to what was considered due process in 1789 would be to place our system in a straightjacket 11 and to ignore the fact that institutions must non potest delegare: and (2) vicarius vicarium non habet (See Bouvier's Law Dictionary, vol. i, pp. 819-825). D Hurtado v. California (110 U. S. 516); Twining v. New Jersey (211 U. S. 78). 10 Cardozo, The Nature of the Judicial Process, pp. 76-77, 82-83, Lecture iii. See especially the book review by Felix Frankfurter, in Harvard Law Review, April, 1924, p. 783. 11 Cf. Woodrow Wilson, Constitutional Government in the United States, pp. 192, 193. change and develop in a manner analogous to the evolutionary process of organic life. An extreme form of this way of thinking leads to the assertion that the due process. issue is as much a political question' as is the question whether a state has a republican form of government,12 and should accordingly be left to Congress. At the least, any process is due' which is in its nature reasonable as applied to the circumstances not of a past age, but of the ever changing present.13 On the other hand, the more conservative school holds that with reference to almost all parts of a written constitution judicial construction is final and authoritative, and that such construction must in all cases be made in the light of the political ideas of the men who framed and adopted the instrument. The logic of this attitude rests on the principle of interpretation that the intent of the legislator is the cardinal consideration.14 This issue is clear-cut and fundamental, and since it is involved in several of the legal problems connected with the ordinance making powers of the President, we may at this point set forth our opinion upon it in some detail. The Constitution was adopted in the eighteenth century, an age when men thought in static rather than evolutionary terms.15 To introduce the more liberal rule of construction mentioned above might, therefore, be considered a legally revolutionary act. Yet we find that the statesmen of that era did as a matter of fact recognize, if not evolution in the sense of the famous Spencerian definition, yet at any rate a necessity for change due to changed conditions or to the more thorough understanding that comes from experience. Else they would not have placed an amending clause in the Constitution. Were this not so, however, practical considerations would require the more liberal interpretation of blanket clauses 12 Pacific States Tel. and Tel. Co. v. Oregon, 223 U. S. 118. 13 See the dissenting opinion of Mr. Justice Holmes in Lochner v. New York, 198 U. S. 45; cf. Noble State Bank v. Haskell, 219 U. S. 104; Cardozo, Nature of the Judicial Process, pp. 112-115. 14 Blackstone, Commentaries (Cooley, ed.), vol. i, p. 58, n. 14. 15 Pound, "Juristic Science and the Law," in Harvard Law Review, vol. xxxi, pp. 1047-1048. |