the Commissioner of Internal Revenue with the approval of the Secretary of the Treasury. Thereupon the collector was fined and caused to be imprisoned for contempt by a notary. He sued out a writ of habeas corpus and was discharged from custody by the United States district court of the Kentucky district. Appeal was taken to the Supreme Court, which affirmed the decision of the lower court. "Manifestly," said Mr. Justice Harlan in his opinion for the Court," he could not have filed the copies called for without violating regulations formally promulgated by the Commissioner of Internal Revenue with the approval of the Secretary of the Treasury. If these regulations were such as the Secretary could legally prescribe, then, it must be conceded, the state authorities were without jurisdiction to compel the collector to violate them." This, it was held, was the case; and the order of release was affirmed.49

" Other cases of which space forbids extended discussion are: United States v. Eliason, 16 Pet. 289; United States v. Williams, 194 U. S. 279; United States v. Midwest Oil Co., 236 U. S. 459; Mitchell v. Harmony, 13 How. 115; United States v. Antikamnia Chemical Co., 231 U. S. 654; United States v. United Verde Copper Co., 196 U. S. 207; United States v. George, 228 U. S. 14; Illinois Central R. R. Co. v. McKendree, 203 U. S. 514; Merritt v. Cameron, 137 U. S. 542; Williamson v. United States, 207 U. S. 425; Deslions v. La Compagnie Générale Transatlantique, 210 U. S. 95; Grisar v. United States, 6 Wall. 363; Albridge v. Williams, 3 How. 1, 29. See also Opin. of the Attys. Gen. 2: 263, 320, 586; 5: 630; 6: 75, 220, 157; 7: 534; 9: 463, 517; 10: 469; 13: 416; 15: 94. Still another topic is whether the President may revoke or alter or completely revise his ordinances in the absence of express statutory authorization. Revocation might so affect statutory rights as to be invalid. But why should alteration or revision be invalid, if the new ordinances are not retroactively applied? See Lieber, Remarks on the Army Regulations, p. 39. Professor Powell uses the simile of the mosaic, which suggests the position of the President as one of functus officio.

CHAPTER VIII

THE RELATION OF THE PRESIDENT TO THE ORDINANCE MAKING POWERS OF HEADS OF DEPARTMENTS AND FEDERAL ADMINISTRATIVE COMMISSIONS

The President speaks and acts through the heads of the several departments in relation to the subjects which appertain to their respective duties. . . . We consider the act of the War Department in requiring this reservation to be made, as being in legal contemplation the act of the President.

-Wilcox v. Jackson.1

The President . . . 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.

-WOODROW WILSON."

On viewing the course which the proceedings of the War Department have not infrequently taken, I find that I owe it to my own responsibility, as well as to other considerations, to make some remarks on the relations in which the head of the department stands to the President, and to lay down some rules for conducting the business of the department which are dictated by the nature of those relations.

In general, the Secretary of War, like the heads of the other departments, as well by express statute as by the structure of the Constitution, acts under the authority and subject to the decisions and instructions of the President, with the exception of cases where the law may vest special and independent powers in the head of the department. . .

...

The following course will be observed in future:

To be previously communicated to the President:

1. Orders from the Department of War establishing general or permanent regulations.

...

-PRESIDENT MADISON to his Secretary of War.3

The head of each Department is authorized to prescribe regulations, not inconsistent with law, for the government of his Department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it.

-Rev. Stat.'

Can it be said that to invest the secretary of the treasury with authority to prescribe regulations not inconsistent with law for the

113 Pet. 498.

2

Congressional Government, pp. 273-274.

8

Writings of James Madison, vol. iii, pp. 417-419. • Sec. 161.

conduct of the business of his department, and to provide for the custody, use and preservation of the records, papers and property appertaining to it, was not a means appropriate and plainly adapted to the successful administration of the affairs of that department? Manifestly not. . . .

In determining whether the regulations promulgated by him are consistent with law, we must apply the rule of decision which controls when an act of Congress is assailed as not being within the powers conferred upon it by the Constitution; that is to say, a regulation adopted under section 161 of the Revised Statutes should not be disregarded or annulled unless, in the judgment of the court, it is plainly and palpably inconsistent with law.

I

-MR. JUSTICE HARLAN."

The President may act through the head of the proper department in issuing most ordinances which he may be authorized by statute to issue; and in such case the act of the head of the department is the equivalent in law of the act of the President. The broad principle is suggested by the cases of Wilcox v. Jackson and Wolsey v. Chapman. In the former, the Court held that an order of the War Department requiring a certain reservation was equivalent to an order by the President, within the meaning of the act authorizing the President to make the said reservation. "The President," said the Court, "speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties. Both military posts and Indian affairs, including agencies, belong to the War Department. Hence, we consider the act of the War Department in requiring this reservation to be made, as being in legal contemplation the act of the President; and consequently, that the reservation thus made was in legal effect a reservation made by order of the President, within the terms of the act of Congress."

6

In Wolsey v. Chapman the contention was made that certain lands involved in the case were not reserved' lands

within the meaning of an act of Congress. Mr. Chief Justice Waite, who delivered the opinion of the Court, after referring to Wilcox v. Jackson, said:

Boske v. Comingore, 177 U. S. 459.

101 U. S. 755.

That case is conclusive of this, unless the word "proclamation" as used in the present statute, has a signification so different from "order" in the other as to raise a material distinction between the two cases. We see no such intention on the part of Congress. A proclamation by the President, reserving lands from sale, is his official public announcement of an order to that effect. No particular form of such an announcement is necessary. It is sufficient if it has such publicity as accomplishes the end to be attained. If the President himself had signed the order in this case, and sent it to the registers and receivers who were to act under it, as notice to them of what they were to do in respect to the sales of the public lands, we cannot doubt that the lands would have been reserved by proclamation within the meaning of the statute. Such being the case, it follows, necessarily, from the decision in Wilcox v. Jackson that such an order sent out from the appropriate Executive Department in the regular course of business is the legal equivalent of the President's own order to the same effect. It was, therefore, as we think, such a proclamation by the President reserving the lands from sale as was contemplated by the act.

In view of executive practice it seems entirely legitimate to extend the doctrine of these two cases to Presidential ordinance making as well as Presidential action in making land reservations. It may be noted, however, that the cases did not consider the possibility that Congress might require in explicit terms that an order be signed personally by the President or by the head of a department. In such case the congressional prescription would probably have to be complied with, else there would be what the French term 'vice of form.' This, however, is a mere matter of form. The more significant problem is the matter of discretion; and that may in practice be devolved by the President upon his subordinates. There is no way in which this could be prevented. Were it not for the possibility of devolution in all ordinary cases we should have to evolve supermen for our Presidents.

The rule as thus stated is not, however, without important exceptions. The exceptions may be said to come within the general statement that where the matter is such as to require the personal attention of the President, the ordinance must

"See Fairlie, "Administrative Legislation," in Michigan Law Review, January, 1920. Professor Fairlie mentions the extent to which re-delegation was carried during the late World War, and raises the question how many degrees of re-delegation are permissible.

8

Willoughby, The Constitutional Law of the United States (student's edition), p. 481.

9

show that it has received his sanction. It was held by the Court in Runkle v. United States that Runkle was entitled to pay which came due after the date of an executive order approving the decision of a court martial sentence, on the ground that the order was not valid. It was a mere departmental order which did not indicate that it represented the personal decision of the President. And since the action of the President, in approving court martial sentences, is judicial and not administrative, said the Court, therefore, it requires his personal attention; and any order of the war department purporting to be approval of such a sentence must indicate in some way that the matter was submitted to the Chief Executive, and decided by him. This is a power which he cannot delegate to his subordinates. The Court did not say that the signature of the Chief Executive was necessary; but declared that at least the order must be "authenticated in a way to show otherwise than argumentatively that it is the result of the judgment of the President himself."

Though this case involved the exercise of judicial rather than ordinance making power, it appears that some ordinances are of such political significance as to have to be issued by the President himself, or at least by the proper department in a document stating that the ordinance is that of the head of the state. As to the question what ordinances are of such a political character, it is the opinion of the writer that they include no material ordinances, no enforcement ordinances, even those applicable to private persons, and only such concretizing ordinances and sub-legislative powers as directly affect major personal and property interests. The latter class would seem to include great political acts like suspending the writ of habeas corpus.1 10

II

Thus except in special cases the President may delegate 11 his ordinance making powers to the heads of the appropriate departments, whose acts in such cases are in law his own.

122 U. S. 543.

10 Ex parte Field, 5 Blatchford 63.

11 See Appendix.