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the courts.

This uncertainty as to the respective powers of the President and the Senate can hardly be removed until the subject of dismissal from office is regulated by an amendment to the constitution.

3. The constitution vests the President with the duty of receiving ambassadors and other public ministers.2 This duty contains very important powers. In discharging it, the President may refuse to receive an ambassador or public minister from a particular state, or from a particular organization claiming to be an independent state; or he may refuse to receive a particular person as ambassador from a state whose independence has been already universally recognized; or he may dismiss or demand the recall of any ambassador or public minister. Furthermore, in discharge of this duty, the President may recognize, in first instance, the independence of a foreign state.

A part of this duty is, therefore, merely ceremonial; another part contains powers which, though discretionary, are not dangerous; while a third part contains powers which may be so exercised as to produce most momentous results. For example, the dismissal of an ambassador or public minister upon grounds personal to himself will not estrange states; but his dismissal for political reasons is a hostile act; and the recognition of the independence of a political organization, which is in rebellion against a legitimate government,

1 This is the testimony, at any rate, of Judge Luke P. Poland, of Vermont, who drew the complaint against General Lorenzo Thomas for threatening to dispossess Secretary Stanton of the War Office without the consent of the Senate to President Johnson's dismissal of Stanton; which was the principle provided against in these acts. According to Judge Poland's story, General Thomas's counsel resolved not to procure bail for their client, hoping that the judge before whom he was brought, Judge Cartter of the District Court, would commit him to prison. Had the judge done so, this would have furnished the opportunity for testing the constitutionality of these acts before the courts. Judge Cartter, however, a friend of the acts, understood the plan and foiled the same by declining to make an order for bail. The prosecution was dropped, and the case failed to reach the court. Letter of Judge Luke P. Poland to the Omaha Republican, under date of March 26th, 1887. 2 United States Constitution, Art. II, sec. 3.

is a far different thing from recognizing a new state not formed through the process of rebellion and revolution.

The Senate has a certain check upon some of these powers of the President, in that the Senate may refuse to make treaties with, or send diplomatic agents to, states whose independence it does not recognize. And the Congress may refuse to create diplomatic posts in such states or vote salaries for their endowment.

As against the commonwealths, however, these powers of the President are exclusive. The commonwealths cannot send diplomatic agents to states, nor receive such agents from foreign states; at least they cannot do so without the consent of the Congress, given by way of a regular statute.

II. The Powers of the President in Legislation.

I. The constitution vests in the President the power to call together the Congress, or either house thereof, in extraordinary session. It also vests in him the power to adjourn them to such time as he shall think proper, in case they themselves cannot agree upon a time of adjournment.

2. It imposes upon him the duty of giving to Congress information of the state of the Union and of recommending to Congress such measures as he shall judge necessary and expedient.

3. It vests in him the power to veto every bill, order, resolution or vote, to which the concurrence of the two legislative chambers shall be necessary, except a vote to adjourn.

The constitution does not manifest any timidity about allowing the President to call one house without the other to extraordinary session. The prime object of this provision is, of course, to allow the President to summon the Senate as an executive council, to aid him in treating with foreign powers and in appointing officials. He may, however, call the House without the Senate, and either body, when so called, may undertake legislative business, in the absence of the other, so far as any constitutional limitations are concerned.

Once assembled in extraordinary session, however, the President cannot adjourn one without the other. He could accomplish this result, however, by adjourning both and then immediately recalling one of them.

The only apparent opportunity for an abuse of this power is in the forming of treaties with foreign powers. This opportunity, however, is not created by the absence of the House, but by the fact that the House, though present, cannot participate in this function. So far as the constitution is concerned, the President and Senate, through a treaty with a foreign state, can bind the House, whether it be absent or present at the time of the formation of the treaty, to anything which by international custom falls within the domain of treaty. Not only is the House bound in a general sense, in that the treaty is the law of the land, but it is also bound to agree to the enactment of the measures necessary to carry out the treaty. The presence of the members of the House at the seat of government might possibly result in the exercise of some influence over the President or the senators when these are engaged in the making of a treaty; but influence is not participation in the exercise of governmental power.

It is manifest from these considerations that there is very little opportunity for the President to abuse the power of assembling one house of the general legislature without the other. It is not easy to see how he could do so without committing a plain and palpable infraction of the constitution. He cannot do it by any mere manipulation of his constitutional powers. If he should succeed, however, in persuading either house to join him in an illegal course, it is difficult to see in what manner he could be brought to account, except at the polls, in case he should be a candidate for re-election; for the only process to which he is subject while in office is impeachment, and it requires the consent of both houses to perfect the inauguration of that procedure. The individual citizen or subject would, however, be protected by the courts

in his personal and property rights against any measures to which the force of law was sought to be irregularly given.

The constitution apparently vests in the President the power to initiate legislation, in the provision requiring him to give information to the Congress of the "state of the Union" and to recommend such measures as he shall judge necessary and expedient. It does not appear to me that any further constitutional warrant is necessary to authorize the President to construct and present regular bills and projects of law to the Congress. The constitution does not prescribe the form in which the President shall present the measures which he may recommend; nor does it vest the Congress with the power to do it, either by any express provision or by any reasonable implication. It leaves the determination of the form, therefore, to the President himself. We must look elsewhere for the explanation of the fact that the President does not present his recommendations to Congress in the form of regular bills or projects. It is to be found in the lack of any executive organs for presenting, explaining, defending and, in general, managing such goverment bills in the Congress. It cannot be predicated with certainty that the existence of such organs would strengthen the power of the executive in legislation. It might lessen his real influThe result would depend wholly upon the character of these organs, and their relation to the Congress, on the one side, and to the executive, on the other. So much, however, can safely be asserted, viz; that the form which the presidential recommendations are, under existing circumstances, compelled to take, is not such as permits the President to exercise any real initiation in legislation. Without such an initiation the veto power does not give to the President an equal part in the legislative power; certainly not when the veto power is limited, as distinguished from the absolute veto possessed by each chamber. The limited veto power of the President is only a negative power, a power to hinder legislation. It may

ence.

be a conservative power; it is sure to be a conservative power in the narrow sense; but it may not be a conservative power in the large and true sense, in the sense which views conservatism, not as stagnation, but as steady and natural development.

I have called the veto power of the President a limited power. It is, as I have indicated, the effect of the veto that is limited. Its extent is not limited. So far as the express provision of the constitution is concerned, the President may veto any act or resolution of the two chambers in regard to any subject. It rests with the President alone to determine whether the veto shall be used freely or sparingly; whether it shall be used generally, or shall be confined to any particular class of subjects. From the executive point of view, there is a natural line of division between possible subjects of legislation. The most important purpose of the veto is to prevent encroachment by the legislative chambers upon the constitutional prerogatives of the executive. Its next most important purpose is to prevent unwise legislative changes in the existing means and measures of administration, and unwise legislation in the creation of new means and measures of administration. The executive must be presumed to know best what are his own prerogatives and what are the most advantageous measures of administration. The peculiar province of the veto is the defense of these domains. On the other hand, projects of legislation which do not touch the executive prerogative or the measures of administration do not naturally call for a vigorous exercise of the veto. Upon such subjects, a wise executive will incline to yield somewhat in opinion to the views of the legislative chambers. He will thereby store up power for more important occasions. It would be very difficult, however, to trace in the constitution this line of natural cleavage. It would be necessary, moreover, if such a solution of the problem were attempted, to construct an

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