What is the best constitution for the executive department and what are the powers with which it should be intrusted, said Judge Story, are problems among the most important and probably the most difficult of solution of any involved in the theory of free governments. The first of these problems has already been discussed it remains now to consider the powers and duties which probably belong to the executive department.
Roughly speaking, the executive power may be classified under the following heads:
- First, that which relates to the conduct of foreign relations and which may be denominated the diplomatic power.
- Second, that which has to do with the execution of the laws and the administration of the government this may be denominated the administrative power.
- Third, that which relates to the conduct of war and which may be described as the military power.
- Fourth, the power to grant pardons to persons charged with or convicted of crime this may be called the judicial power of the executive.
- Fifth, that which relates to legislation or the legislative power.
The constitutions of all states intrust the chief executive, either alone or in conjunction with the legislature or one chamber thereof, with the authority to conclude treaties and other international agreements with foreign states. Everywhere he is the representative of the state in its relations with foreign powers he appoints diplomatic representatives to foreign states and receives those accredited to him by foreign states.
The power to receive a foreign diplomatic representative is generally interpreted to include the power to recognize or refuse to recognize the independence of the state which he represents or the legitimacy of the government which accredits him. Strictly speaking, the treaty making power is neither purely executive nor purely legislative in character. It constitutes, as Esmein remarks, a sort of mixed zone occupied at the same time by both the legislative and executive authorities.
But whether, it be executive or legislative in character, there is practically ho difference of opinion with regard to the wisdom of intrusting it to the executive. The legislature, or one chamber of it, however, may very properly be vested with the negative power of ratification as a means of checking the errors or abuses of an unwise, ambitious, or unscrupulous executive, though owing to the peculiar nature of the treaty making power, the legislature cannot wisely be allowed a direct participation in the negotiation.
Alexander Hamilton well observed that accurate and comprehensive knowledge of foreign policies, a steady and systematic adherence to the same views, a nice and uniform sensibility to national character, decision, secrecy, and dispatch are incompatible with the genius of a body so variable and so numerous.
The fluctuating and multitudinous composition of the legislature, he continued, forbid us to expect in it qualities which are essential to the proper execution of such a trust. Nevertheless, as Story observed, it is too much to expect that a free people would confide to a single magistrate, however respectable, the sole authority to act conclusively upon the subject of treaties.
In a few monarchical states like Great Britain, this power is exclusively in the hands of the executive, parliament having no share except where legislation may be necessary to perfect the treaty or carry it into effect. In such states, therefore, the executive is both the negotiating and ratifying authority. But during and following the World War this feature of the British constitution was the subject of considerable criticism by certain Liberals and by the members of the Labor party who demanded the introduction of what they called democratic control of foreign policy.
They charged that British diplomacy was characterized by too much secrecy and too little regard for public opinion, that Great Britain had been committed to unwise foreign engage pants without the approval of the public and without the knowledge of parliament , some even charged that she had been led into the World War through secret bungling diplomacy, when if the public had been kept properly informed and its wishes followed, England would never have been involved in the conflict
They demanded, therefore, that all treaties should be laid before parliament for its assent, and when the new Labor government came into power in 1922, it announced that this procedure would be followed. With the return to power, however, of the Conservative party, the old practice was reverted to.
In the majority of states, however, monarchies as well as republics the assent of the legislature or one branch of it is essential to the validity of all treaties or certain classes of them. In the United States, for example, the consent of the State is required by the constitution, though the right of the executive to conclude certain kinds of international agreements independently of the Senate has long been acquiesced in.
In practice the power of the United States Senate is not restricted to the mere negative function of ratifying or rejecting the treaties negotiated by the executive, but it claims and has many times exercised the right of virtually amending those submitted for its approval.
The House of Representatives likewise exercises an indirect share in the treaty-making power through its right to give or with hold its consent to legislation which may be necessary to carry into execution a treaty, such, for example, as one which stipulates for an appropriation of money. Moreover, the necessity for its approval of treaties which have to do with the regulation of foreign commerce, such as commercial reciprocity agreements,_ is now admitted by both the Senate and the President.
In the German Republic treaties and alliances concluded by the president require the assent of the Reichstag when they relate to subjects which fall within the jurisdiction of the Reich-which would seem to include practically all treaties and alliances, except minor agreements between the individual states themselves or with their foreign neighbors relating to matters which are within their competence.
In France treaties of peace and commerce and treaties which involve the finances or territory of the state or affect the personal or property rights of Frenchmen in foreign states, must receive the assent of both chambers. The French chambers, however, cannot modify or amend treaties submitted for their consideration as the Senate of the United States may, but must approve or reject them as a whole.
The requirements of the Finnish and Polish constitutions are essentially the same as that of France. In Czechoslovakia not only commercial treaties and those which entail financial burdens but also those which impose military or “personal” burdens upon the citizens, must be approved by parliament. The Belgian requirement is practically the same.
In Brazil and Chile apparently all treaties without exception must be approved by both houses of congress. In the United States, where one hears much criticism of the existing constitutional rule Which places it within the power of one more than one third of the members of the Senate to defeat the ratification of treaties, ratification by both, houses of Congress by a simple majority has recently been proposed by various statesmen and publicists. As already pointed out in an earlier chapter,Switzerland by a recent constitutional amendment provides for a popular referendum on treaties of more than fifteen years duration. This amendment introduces the principle of popular control of diplomacy in a form which is not found in any other country
Administrative powers, Power of Appointment :
In the domain of internal administration the principal power and duty of the executive is to direct and Supervise the execution of the laws. He is the chief of the administration and the responsible head of the civil service. As such he exercises a wide power of control over, the personnel of the administrative service through his power to appoint, direct and remove his subordinates.
In most republican states and in a few of the monarchical type the power of the chief executive is limited by the requirement that his appointments shall be approved by one branch of the legislature. Thus in the United States the nominations of the President must be confirmed by the Senate and this practice is followed in some of the Latin American constitutions and in those of the component states of the American republic.
The power of the President of the United States to remove, however, is not limited by the necessity of obtaining the consent of the Senate, as is the case in making appointments, and it is now settled that Congress has no constitutional right to abridge his power of removal. Ordinarily the appointing power of the chief executive extends Only to political, judicial, and military functionaries but in some European states (e.g, Czechoslovakia) the constitution gives him the power to appoint university professors.
There is little difference of opinion in regard to the wisdom of executive appointment of the higher officials though as to whether the executive should be independent in his choice or subject to the control of a council or a senate, there is no such unanimity of Opinion or practice.
In defense of the method provided by the constitution of the United States, Hamilton observed that it is not easy to conceive a plan better calculated than this to promote a judicious choice of men for filling the offices of the Union, and it will not need proof that on this point must essentially depend the character of its administration.
One man of discernment, he declared, is better fitted to analyze and estimate the peculiar qualities adapted to particular offices than a body of men of equal or perhaps even of superior discernment. The sole and undivided responsibility of the executive, he went on to say, naturally begets a livelier sense of duty and a more exact regard to reputation.
He will inquire with more earnestness and decide with more impartiality. He will have fewer personal attachments to gratify than will a body of men, and will be less liable to be misled by his private friendships and affections or, at all events, his conduct will be more open to scrutiny and less liable to be misunderstood
Nevertheless, the provision that the nominations of the executive should receive the assent of the Senate, Hamilton admitted, would be an excellent check upon a spirit of favoritism in the President and would tend greatly to preventing the appointment of unfit characters.
Power of Direction :
Flowing from the right of the chief executive to select and dismiss his subordinates is the right to direct of them. This power varies in extent in different countries, and in the same state it often varies as regards different officials. In monarchies, and in republics like France, Where monarchical traditions are still strong, the directing power of the executive (which of course means the ministry) is very great.
In the United States the power of the executive to direct his subordinates is, however, often limited by legislative acts which specify in more or less detail the powers and duties of such official. Thus the fiat of Congress organizing the treasury department contains no reference to any presidential power of direction and indicates that the administration of the finances is to be kept under the control of Congress rather than under the executive.
Various statutes confer upon the President specific authority to issue instructions and orders to the heads of departments. But aside from specific grants of authority, the President has also a certain power of direction which is inherent in the nature of his office and for which he is not obliged to show statutory authority.
The Ordinance Power :
An important power belonging to the , chief executive of most states is that which is commonly known as the ordinance power-le pouvoir réglementaire of the French a sort of subsidiary power-of legislation which takes the form of decrees, orders, or regulations (French réglements German, Verordnungen). This power is frequently expressly conferred on a king or on a president of republic by the constitution.
In the United States the power is derived from the clause of the federal constitution which charges the President with the execution of the laws and in France from a somewhat similar clause which imposes upon him the duty of overseeing (surveiller) and insuring the execution of the laws (Art. 3, Const. Law of Feb 25, 1875). In the absence of express authority in the constitution it may be tied need from the very nature of the office as a necessary and inherent power.
In monarchical states it is considered a part of the royal prerogative in the absence of constitution or statutory prohibitions or restrictions. Where the power is expressly conferred by the constitution it is usually qualified by the condition that ordinances promulgated by the executive must not modify or suspend the Laws (statutes), or that they must be such Only as are necessary or appropriate to the execution of the laws, or that their purpose must be merely to supply the details in the application of the laws. Occasionally constitutions confer on the executive an extraordinary power of ordinance making in times of emergency.
Thus the constitution of Denmark (Art. 25) empowers the king in such cases, if the legislature is not in session, to issue laws of temporary application subject to the restriction that they must not be contrary to the constitution and must be laid before the legislature at the next session.
Upon the out break of the European War in 1914 a very large ordinance power Was conferred upon the executives in most of the belligerent Countries. Thus by the Defense of the Realm Act of Nov. 27, 1914, the British king (in council) was given power, during the continuance of the present war to issue regulations for securing the public safety and the defense of the realm an authority which was practically unlimited. In pursuance of this delegation of power an elaborate series of regulations were put into effect which virtually placed the country under a regime of martial law.
Kinds of Ordinances.
From the point of view of their nature or purpose ordinances may be variously classified. Thus the German jurists distinguish between law ordinances and administrative ordinances .The effect of the former is to create new law or to modify the existing law. They are essentially a species of executive legislation and are designated by the Germans as material law in contradistinction to formal law.
The administrative ordinances are orders or regulations addressed to administrative authorities and contain rules governing the conduct or functioning of the administrative services. They do not, therefore, bind or affect directly private citizens. In Prussia, at least under the 0ld constitution, the latter type of ordinances could be issued by the proper administrative authority without the necessity of legislative authorization, but the former, after 1850 When Prussia acquired a constitution, required legislative authorization, which was often and generously granted.
Ordinances may be further classified in a threefold division:
First those which are, in their nature and effect, laws promulgated by the chief executive in pursuance of a general power of legislation conferred upon him by statute. Such are the decrees issued by the president of the French republic for the government of the French colonies. As a consequence of this authority he and not the French parliament is the legislative organ for the colonies.
Second, ordinances issued by the executive in pursuance of legislative authority to regulate specific matters. Such delegations of legislative authority to the president are common in France. Thus an act of parliament authorizes the president to determine by decree the regime of non-navigable waters, to regulate the conditions of appointment and promotion of judges, to modify or suspend existing laws relating to taxes, etc.
Third, ordinances issued upon invitation of parliament for the purpose of completing and regulating the details of execution of a particular law. This form of ordinance is also very common in France. There statutes are ordinarily brief, contain only the essential ideas of the legislature, and leave the details to be supplied by ordinance.
The Ordinance Power in France.
TO-day nearly every important act of the French parliament concludes with the familiar clause:
“an ordinance of public administration shall determine the measures proper for assuring the execution of the present law.”
The ordinances issued in pursuance of this injunction complete the law, they supply the details without which it would be unenforceable. The Germans call them supplementary ordinances. They constitute, says Duguit, a sort of “prolongation” of the law which they supplement. Duguit maintains, properly it would seem, that ordinances such as these are materially and intrinsically veritable acts of legislattion, though not such in form.
In consequence of this practice, especially in recent years, it has come to pass that a large and important part of French legislation is in the form of ordinances, in theory promulgated by the president, in fact by the ministers. Naturally complaints have not been lacking that they are some times contrary to the existing statutes.
But until 1907 their legality-could not be attacked before the Council of State (the supreme administrative court of France) because the Council considering them as a species of delegated legislation and there fore assimilable to acts of parliament, held that it had no more jurisdiction to declare them null and void than it did to pronounce a statute of parliament illegal.
However, in 1907 ,the Council of State abandoned its traditional view in this respect, took jurisdiction of a case involving the validity of such an ordinance, and pronounced it null and void as being in excess of the authority of the president who issued it. The result of this epoch-making decision is that the ordinance power of the French president, as of every administrative authority, is now subject to judicial control, as in the United States.
The Ordinance Power in the United States.
In the United States the ordinance power of the executive is less important because of the practice of Congress and the state legislatures of framing their statutes in more detail, thus obviating the necessity of supplementing them by means of executive regulation in order to render them enforceable.
Nevertheless, the ordinance power of the president is very considerable and few people are aware of the extent to, Which it is used of the quantity of subsidiary legislation in the form of executive orders and regulations actually in force of the character of this administrative legislation Professor Fairlie says:
“There are indeed, besides presidential proclamations and executive orders, many elaborate systems of executive regulations governing the transaction of business in each of the executive departments, and in the various services both within and without these departments. These include organized codes of regulations for the army, the navy, the postal service, the consular service, the customs service, the internal revenue service, the coast guard, the patent office, the pension office, the land office, the Indian service, the steamboat inspection service, the immigration and the naturalization bureaus, and the civil service rules. In addition to long-established types of regulations, there have been many new series of regulations issued in recent years both before the World War and more recently by the new war agencies, such as Food and Fuel Administration, the War Industries Board, and the War Trade Board.”
By acts of Congress in 1933 and 1934 President F. D. Roosevelt was given extensive powers of a legislative character.
In addition to this volume of subordinate legislation in the form of presidential proclamations, orders, and regulations, there is a vast body of more specialized rules, orders, and instructions issued by the various departments, bureaus, and commissions.
The Ordinance Power in Great Britain.
In Great Britain the king no longer has any inherent power of legislation for completing the laws by means of proclamations or ordinances as he once had, but he may issue regulations addressed to the servants of the crown for the conduct of public affairs. Moreover, power to make ordinances which have the force of law and which are binding as such upon the whole community is frequently conferred upon the crown by statute, especially in respect to such matters as education, the public health, etc. These ordinances are known as “statutory rules and orders,” and they are published every year in a volume similar to that containing the statutes of parliament. The practice of delegating the power of subsidiary legislation of this kind to the crown has steadily increased in recent years until-its quantity and importance has become very great.
The Military Power of the Executive:
The military power of the executivl usually includes the supreme command of the army and navy and other military forces of the state. In some monarchical countries like Great Britain it embraces also the right to declare war although, since it belongs to parliament to provide the means of prosecuting the war, parliamentary consent is in effect necessary In the United States, however, this latter authority is vested in Congress, though it is possible for the executive in his conduct of the foreign relations of the country to bring about a condition of affairs Which will make war a practical necessity.
In the German Empire under the old constitution the emperor could declare offensive war only with the consent of the Bundesrath. Under the new constitution the power to declare war and make peace rests with parliament (Art. 45). In Czechoslovakia a three fifths majority of the legislature is necessary to a declaration of war. In France the assent of both chambers is necessary, No, where, even where the executive may initiate hostilities, can extensive war be waged for any length of time without the approval of the legislature, since it and not the executive controls the means for the prosecution of war.
Nearly everywhere-the right of the executive to dispose of the forces plan and direct the campaigns, select the commanders, establish blockades, and, in general, do whatever in his judgment may be necessary or expedient to destroy the power of the enemy and prosecute the war to a successful conclusion, is recognized.
Moreover, it belongs to the President of the United States, in particular, to occupy, hold, and govern temporarily those portions of the enemy’s country which have come under the control of the armed forces, and to this end, he may displace the established civil authority and institute military government, and invest it With such powers as he may choose to-confer upon it.
Finally, during the existence of the war it belongs to the executive to suspend the ordinary civil guarantees which the constitution has established for the protection of the individual in time of peace. As commander of the armedforces he may establish martial law, suspend the writ of habeas corpus, declare certain acts ordinarily innocent to be military offenses and order the arrest of persons committing them, suppress newspapers, and the like. Many constitutions authorize the president, in times of emergency or grave crises. When war does not exist, to declare martial law-the state of siege? as it is called in Europe-and to suspend temporarily the constitutional rights of the citizens.
War always brings a vast addition t9 the power of the executive and enables himo to assume something of the character of a dictator. Nevertheless, the experience of the past and the testimony of political thinkers almost without exception have concurred in defending the practice of concentrating the military power in the hands of a single person.
In the military organization of the state dualism is out of place Of all the cares or concerns of government, the direction of war, said Alexander Hamilton, most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength and the power of directing and employing the common strength form a useful and essential part in the definition of the executive authority.
The command and application of the public force, said Chancellor Kent, to execute the laws, to maintain peace, and to resist foreign invasion, are-powers so obviously Of an executive nature and require the exercise of qualities so peculiarly adapted to this department, that they have always been exclusively appropriate to it in every well-organized government on earth.
The Pardoning Power.
Finally, the right of pardon or clemency (the droit de grace of the French) is by common consent regarded as a natural and necessary part of the executive power. Beccaria stood almost alone among the political writers of his time in condemning the practice of granting pardons to those whom the courts have convicted of crime.
Montesquieu, while considering it to be one of the most useful and necessary attributes of monarchs, did not regard it as having any place in republics. Some English lawyers of high standing, observed Chancellor Kent, have strangely concluded that it cannot exist in a republic because nothing higher is acknowledged than the magistrate?
But, as Kent very properly added, It may be fairly insisted that the power may exist with greater safety in free states than in any other forms of government, because abuses of the discretion unavoidably confided to the magistrate in granting pardons are better guarded against by the sense of responsibility under which he acts
Considerations of justice and humanity require that the principle of clemency shall have a place in the administration of justice. No system for the administration of justice is or can be free from imperfections. It is impossible, says Esmein, that there should not occur at times in the administration of justice judicial errors which would result in the condemnation of innocent persons.
One purpose of the pardon is to correct such errors, It is impossible also, as Esmein remarks, that the criminal law in fixing the punishment of crime should foresee all the extenuating circumstances that may have attended the commission of a particular offense.
The power of pardon then being required by considerations of humanity and sound public policy, the same considerations conspire, said Hamilton, to dictate that this benign prerogative should be fettered or embarrassed as little as possible. In China (Const. 1923, Art. 87), the president may grant pardons only with the approval of the supreme court. In some of the states of the American Union the executive in the exercise of this power is associated with an advisory board which is charged with investigating applications for clemency and making recommendations to the executive. Many constitutions except the offense of impeachment from the pardoning power of the executive, and a few make the same exception in the case of treason.
Impeachment is a form of trial ,usually conducted by the legislature for crimes committed by high officials, and the purpose of the exception referred to is to remove the temptation of the executive to shield public officials, especially those of his own selection, who might be his instruments or his partners in crime. Treason beings crime leveled against the immediate being of the society, when the laws have once ascertained the guilt of the offender, there seems a fitness in referring the expediency of an act of mercy towards him to the judgment of the legislature.
With these exceptions the power of pardon is general and unqualified, So far as the President of the United States is concerned, it may be exercised before as well as after conviction and it usually embraces the remission of fines and forfeitures and the granting of reprieves and commutations. It also includes the right of amnesty, or the right of absolving by general proclamation large numbers of persons from the consequences of their aets a power which considerations of humanity and public policy make a necessity in times of internal disturbance and insurrection.
Miscellaneous Powers’s of the Chief Executive:
Such in summary are the powers commonly conferred upon or exercised by the Chief executive leaving aside for the moment those Which relate to legislation, to be discussed in the next section. In addition to these, certain miscellaneous powers are conferred upon the Chief executive by the constitutions of some states .Thus the constitution of Austria (Art. 65) empowers the president to create and confer professional titles, to legitimize illegitimate children, and it adds that other powers may be conferred upon him by law.
That of Czechoslovakia (Art. 54) authorizes the president to grant donations and pensions in Special eases upon recommendation of the ministry that of Finland (Art. 31) authorizes the president to naturalize aliens and to release Finns from their nationality while that of Chile (Art. 72) authorizes the president to grant pensions and retirement allowances to widows and to orphans in accordance with the laws, and to grant juridical personality to private corporations, and to cancel the same and to approve or disapprove their statutes.
By a sort of blanket clause the constitution of Chile (Art. 71) charges the president with the administration and government of the state and declares that his authority extends to everything which has as its purpose the preservation of internal public order and external security, in accordance with the constitution and the laws. The long enumeration of his specific powers in the constitution does not therefore exhaust his authority.
