such articles coming from such country. The function of the President was described by the court as the determination of a "fact", but in each case it would be based upon a standard of fairness in the mind of the President. Although that standard would not be formulated as a general rule to be applied in particular cases, and might even vary from case to case, yet the necessity for its determination by the President rendered his action discretionary.

State courts have sometimes declared laws unconstitutional as involving a delegation of legislative power to the executive; but the Supreme Court of the United States has never in its history refused to enforce a law of Congress on that score. It has held regulations of executive officials invalid as exceeding the scope of the delegation; and it has required that an indictment for the violation of an ordinance show plainly that Congress meant to make the violation of such an ordinance a crime or misdemeanor. It has also, as in the leading case of Field v. Clark, stated in no uncertain terms that Congress cannot delegate its legislative power away. Yet it has upheld some wide delegations by simply calling the power granted under them administrative rather than legislative.

In thus refusing to call a spade a spade, the court has attempted to allow the needed flexibility in governmental arrangements without admitting that Congress can devolve its constitutional powers upon the Executive. When it says that the power delegated is administrative it means that while it may, on logical analysis, partake of some of the elements of legislation, it is such a power as in all workable governments must upon occasion be left to the administrative branch. Can it be supposed that the practical men who framed the Constitution meant to carry logic to the absurdity of choking the free operation of government?

There was a reference to the subject in the Philadelphia Convention of 1787, where it was agreed that it would be improper to allow Congress to delegate to the President powers "legislative in their nature". The record does not show that there was any opposition to the delegation of powers that were neither legislative nor judicial. In fact, Madison advocated a clause enabling the Chief Executive to carry out such powers when delegated by

Congress. His motion was voted down, but the only reason given is that it was considered "unnecessary, the object

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being included in the power to carry into effect the national laws." Madison obviously meant to provide expressly for the delegation of administrative powers. Whether he or others considered that that category included the power to issue regulations within the limits of statutory provisions must be decided by evidence outside his note on the incident.

One bit of such evidence is contained in Number LXXIV of The Federalist papers, which mentions in passing that it is "questionable" whether Congress could delegate to the President such a power as that of pardoning if the Constitution vested it in that body. Aside from the somewhat indecisive tone of the writer on the issue involved, this would seem to be an argument against just such delegations as have been made time and time again. But it must be borne in mind that such sources as the records of the Convention and The Federalist furnish evidence but not conclusive proof of the intention of the framers of the Constitution and of the people in accepting it. Legal argument is not lacking on the other side of the question. This is found in contemporary construction, as notably in the above-mentioned delegation by Congress to President Washington of the power to lay an embargo. Also significant is the opinion of Chief Justice Marshall which occurs as a dictum in Wayman v. Southard, decided in 1825, to the effect that Congress can delegate to another organ the power to "fill up the details".

While the courts are no doubt right in refusing to give too rigid an interpretation to the rule against the delegation of legislative power, yet it must be admitted that the oft-repeated distinction between the delegation of the power to make a law and the making of a law granting the power to determine a “fact” thereunder almost vanishes in cases where there are delegated almost all the elements of discretion, which lead some students of the subject to declare that the principle that delegatus non potest delegare is only a political maxim and not a rule of law, except that it renders it illegal for Congress to transfer its legislative powers or any of them to another. It is certainly true that under our rigid Constitution the law making body may not authorize

the executive at his discretion to pass rules and regulations governing any and all aspects of its enumerated powers or any given one of them (such as the power to regulate interstate commerce). Could it allow him to regulate even a particular phase of interstate commerce, such as the railroad problem, or more specifically still, railroad rates? It probably could not grant full power to regulate the whole transportation problem; but it has in fact delegated to the Interstate Commerce Commission the power to fix railroad rates, with only the limitation that they be “reasonable". The scope of the power conferred thus seems to be one test of the legality of a delegation, and very properly so.

But this is not all. Congress must clearly define the subjects and express or imply the ends of the executive regulations; and Congress alone can make the violation thereof a crime or misdemeanor. This latter function is historically so clearly the teeth of legislation that, while the Executive may be given discretion as to the amount of the penalty, he may not be allowed to fix the kind.

Besides these three limitations there are only moral restraints on the action of the Executive in ordinance making, except where the actual abuse of discretion or the issuance of ordinances beyond the scope of the authority delegated allows the courts to declare them invalid in a proper case. As thus interpreted the power is so broad that one hesitates to say that it was contemplated by the framers. Yet the existence of so indefinite a power once being granted, it is sound legal reasoning to hold that the framers would have allowed its use to any reasonable extent demanded by the growing complexity of the problems with which government has to deal. Furthermore, legal arguments against holding unconstitutional delegations under this broad interpretation are to be found in the fact that such interpretation is confirmed by legislative practice from the first administration, and by the establishment under delegations of rights which it would be harmful to disturb.

From the delegation of legislative power to the Executive let us turn to the provisions of the Constitution whence the President derives his constitutional ordinance making power. The fact that "all legislative powers herein granted" are vested in Con

gress furnishes a presumption against the possession by the President of any such powers. But where a specific grant is or involves such a function this presumption is over-ridden. To such a special and exceptional subject the separation of powers as a general constitutional principle does not apply. Now the Constitution makes the President commander-in-chief of the army and navy. That this position involves legislative powers may be reasoned in the following manner: By the universal practice of civilized warfare, the conquering state has the right in international law to govern through its armies the territory it holds. Because this international right is by its very nature a necessary feature of the conduct of military operations, it may be assumed, from the point of view of American municipal law, to be a part of the powers of every military commander. Hence it is that the President, as commander-in-chief, as well as his subordinate commanders, has, despite the separation of powers, legislative and other governmental powers over conquered enemy territory in time of war. These subordinate generals are subject to the orders of the President, just as he is subject to the general direction of Congress under its war powers and its power "to make all laws which shall be necessary and proper for carrying into execution all other powers vested by this constitution in any department or officer" of the Federal Government. The powers thus derived the President exercised in the Mexican, Civil, and Spanish wars; and his action in this connection was in most of the cases that arose upheld by the Supreme Court.

The President may also as commander-in-chief issue rules governing the military and naval forces of the nation. This again is not legislation affecting the private citizen, but internal regulation of a special branch of the administration by its constitutional head. Congress has authorized this, though it is hardly to be disputed that the President could issue such regulations on his own authority. No doubt he may also, even without Congressional authorization, under his duty to "take care that the laws be faithfully executed", issue Executive Orders to his subordinates in the civil administration. For clearly this is the most systematic as well as the most effective method of performing that constitutional duty. Perhaps also the fact that in him is vested

"the executive power" gives him a certain power of administrative control which is exercisable by regulations or orders. Such orders are illegal, however, when they command interference with private interests which is unauthorized by law or any action which is contrary to the law. As between Executive Order and statute, the heads of departments and all officers of the Government are bound to follow the latter until it has by the courts been declared invalid. Finally, the administrative orders of the President have no sanction attached to them except that in the power of removal, unless Congress sees fit to provide penalties for their violation or processes for their enforcement.

We have spoken only of the ordinance making powers of the President. But not to mention those of administrative commissions acting under authority from Congress, we may note that the heads of departments have delegated though not constitutional powers of this character. More important for present purposes is the fact that where such powers are by the Constitution or statute given to the President, he may carry them out through the proper department, except in certain cases where his personal judgment is required. In all other cases the courts recognize the departmental order as being in the eyes of the law the order of the Chief Executive. Were it not for such devolution we would have to evolve a race of supermen for our Presidents.

JAMES HART.