The Constitution of the United States of America: Analysis and Interpretation

t of Laws a

assist in working the great machine of government,"[35] he voiced a theory of executive power which, impudently as it flouted historical fact, had the support of the draftsmen of the first American constitutions. In most of these instruments the governors were elected annually by the legislative assemblies, were stripped of every prerogative of their predecessors in relation to legislation, and were forced to exercise the powers left them subject to the advice of a council chosen also b

rerogative was residual power, that the monarch was first on the ground, that the other powers of government were off-shoots from monarchical power. Moreover, when our for

e work we are told, nevertheless, that "prerogative" is the power "to act according to discretion without the prescription of the law and sometimes against it"; and that this power belongs to the executive, it being "impossible to foresee and so by laws to provide for all accidents and necessities that may concern the public, or make such laws as will do no harm if they are executed with in

ts appearance late in the Convention and was never separately passed upon by it, was to settle the question whether the executive branch should be plural or single; a secondary purpose was to gi

the former occasion Madison and others advanced the contention that the clause empowered the President to remove without the Senate's consent all executive officers,

d "cut him to pieces in face of public," Madison shifted position, and charged Hamilton with endeavoring to smuggle the prerogative of the King of Great Britain into the Constitution via the "executive power" clause.[39] Three years earlier Jefferson had him

. Madison for the Court's claim of power to pass on the constitutionality of acts of Congress, Marshall said: "The government o

is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in

may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They resp

ination by the President that the existing government of Rhode Island was "republican" in form. It declined the invitation, holding that the decision of Congress and of the President as Congress's delegate was final in the matter, and bound the courts. Otherwise said Chief Justice Taney, the guarantee clause of the Constitution (Article IV, se

that, in performance of the trust enjoined upon him by the "faithful execution" clause, the President "not only may, but ... is bound to avail himself of every appropriate means not forbidden by law."[45] Especially noteworthy is a series of opinions handed down by Attorney-General Cushing in the course of the years 1853 to 1855. In one of these the Attorney-General laid down the doctrine that a marshal of the United

partly in reliance on his powers as Commander-in-Chief, incidentally furnishing thereby a formula which has frequently reappeared in opinions of Attorneys-General in recent years. Nor did Lincoln ever relinquish the belief that on the

comfortable position that the normal powers of the government were perfectly adequate to any emergency that could possibly arise, and citing the war just "happily terminated" in proof. But once again the principle of equilibrium asserted itself. Five months af

y to take care that the laws be faithfully executed is "limited to the enforcement of acts of Congress or of treaties according to their express terms," whether it did not also embrace "the rights, duties, and obligations growing out of the Constitution itself ... and all the protection implied by the nature of the government under the Constitution."[51] Then in 1895, in the Debs

odore Roosevelt, who tells us in his Autobiography that the principle which governed him in his exercise of the presidential office was that he had not only a right but a duty "to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws."[53] In his book, Our Chief Magistrate and h

n war", he claimed for the National Government in general, and for the President in particular, powers which they had hitherto exercised only on the justification of war. Then when the greatest crisis in the history of our international relations arose, he imparted

because of the failure of the Court to traverse the President's finding of facts allegedly justifying his action, an omission in accord with the doctrine of Political Questions; secondly, the evident endorsement by a majority of the Court of the doctrine that, as stated in Justice Clark's opinion: "The Constitution does grant to the President extensive authority in times of grave and imperative national emergency".[57] That the Court would have sustained, as agai