in the distribution of appointments since they were out of harmony with the policy of the president. As the insurgents were ready to defy the president, this threat was denounced by them as an improper use of the power of the president, and the policy was never actually carried into effect. It should be remembered that at that time neither was the Republican party united, nor had President Taft attempted to utilize his great powers to direct its policies. Through his veto power the president is a part of the legisla- Veto seldom ture, and it is not often that his opponents muster the necessary two thirds to override his objections. Finally, as an executive President as officer enforcing the law, the president can stamp his policy may enforce upon his party, so that in the eyes of the public the action of his policy the president expresses the ideas of the party.

overridden

executive

may be

almost dictator of party,

and name his successor

With these constitutional and extra-constitutional powers the President president is almost irresistible within his party. With the exception of Arthur and possibly of Hayes, no president desirous of renomination has failed to obtain it from the hands of his party.. When it is remembered that the president chooses the chairman of the national party committee, and thus practically controls its action between conventions, and, as has been shown, the convention itself is largely controlled by the committee, it cannot be doubted that the president's influence is nearly supreme. Add to this the patronage which the president may put at the disposal of his supporters either to reward their activities or to build up a personal following, and it must be admitted that the president has it very largely in his power to dictate either his own nomination or that of another. This was well illustrated by the two nominations of President Taft. In 1910 he was accepted by the party at the behest of his then friend, President Roosevelt, in spite of some opposition. In 1912 he forced his own nomination in spite of the vigorous opposition of Roosevelt, whose influence and popularity far exceeded that of President Taft. It is true that with the extension of the direct primary method of nomination of delegates to the convention the power and influence of the president in this respect is likely to decline, yet his prestige will still be greater than that of any other individual.

To sum up: A popular president with a united party in the majority adds to his wide constitutional powers the authority of

Constitutional powers

the leader of a successful party. There seems no limit to the and power as power of such a president, and in time of war, as the administrations of Lincoln and Wilson show, the spirit of the Constitupresident one tion may be violated with impunity. On the other hand, the

party leader

make the

of the

strongest executives

Original intention that

constitutional powers of the president are so great that by skillful use of them he may control his party even after he has lost its confidence. Again, his position in our system is so commanding and he so dominates the other departments of the government that he can color the whole administration of the laws with his opinion and through their execution attract supporters to himself. Our system adds to a constitutional authority which few executives possess, the power of party leader held by the prime minister in England - even more, for the fixed term of the president makes him not responsible to the legislature, as is the prime minister, but superior to and independent of it; while the length of the term gives the president immunity from waves of discontent and renders his position more secure against popular criticism.

THE PRESIDENT AS GENERAL EXECUTIVE

It has just been shown that the power of the president as a political and party leader is enormous. This was probably the should be the field in which the framers of the Constitution expected the presi

president

political

leader

dent would be most active. As has been said, "In the United States it was undoubtedly intended that the president should be little more than a political chief; that is to say, one whose function should, in the main, consist in the performance of those political duties which are not subject to judicial control." According to Professor Ford, the president was "... to take care of the government, to attend to its needs, to shape its policy, and to provide for its responsibilities." 2 The executive power which was given to him was given in specific grants: the power of recommendation and advice, the direction of foreign affairs, the power of appointment, the position of commander in chief, and the power of pardon. His position, except for his power in foreign

1 W. W. Willoughby, The Constitutional Law of the United States, Vol. II, p. 1156.

2 H. J. Ford, The Rise and Growth of American Politics, p. 275.

now administrative head of government

because of

terpretation

affairs, was analogous to that of the state governors of the time.1 Nevertheless, the executive power of the president has greatly President developed until to-day he is not merely a political leader but the head of the national administration, charged with the oversight and direction of the government and the execution of the laws. This change, or development, in his position is due to two (1) liberal inreasons: In the first place there are clauses in the Constitution of constituwhich, perhaps contrary to the intent of the framers, are capable tional powers of interpretation in such a way as to extend the general executive power of the president beyond the specific grants given to him. In the second place Congress has by its interpretation and (2) grants of application of these clauses laid upon the president new duties Congress and responsibilities, which greatly extend his functions as an executive.

power by

powers of

Constitution

(2) Implied

powers:

The executive functions of the president are thus divided into Executive two classes: those granted specifically, which have been men- president: tioned, and which will be discussed in detail; and the implied (1) Powers specifically executive powers which interpretation and legislation have widely granted developed. These last powers are in turn capable of subdivision. by the First, those general executive powers which are granted him by Congress in the interpretation of Article I, Sect. viii, clause 18, Congress shall have power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or office thereof"; and second, those which come immediately from the Constitution without the action of Congress, and are found by implication in the definition of the executive power and in the president's oath.2

Concerning the first class of powers there can be little question. Congress can legislate upon a variety of subjects and by

1 F. J. Goodnow, Principles of Administrative Law in the United States, PP. 71-73.

2 The executive power shall be vested in a President of the United States of America. Article II, Sect. i, clause I

I do solemnly swear (or affirm) that I will faithfully execute the office of President . . . and will, . . . preserve, protect, and defend the Constitution. . . . - Article II, Sect. i, clause 7

He shall take care that the laws be faithfully executed.

Sect. iii

Article II,

(a) Powers Congress under "elas

given by

tic clause "

(b) Powers

implied from

the definition of the execu

tive power

Creation of new departments

Interstate commerce

law can give the president powers which otherwise are not granted in the Constitution in order to carry into effect the will of Congress. If the congressional act be constitutional, the executive power of the president is thereby extended. Countless examples might be cited of this congressional extension of the power of the president. The creation of new departments charged with new functions gives to the president, through his appointing power, new executive power.. This was most markedly illustrated, however, in the field of interstate commerce, in 1894, at the time of the Chicago railroad strike. Congress had placed upon the national administration the responsibility of maintaining the railroads as national highways,1 and by statute made the following provision :

...

Whenever, by reason of unlawful obstructions, combinations, or assemblages of persons. . . it shall become impracticable in the judgment of the President to enforce, by ordinary course of judicial proceedings the laws of the United States within any State . . . it shall be lawful for the President to call forth the militia . . . and to employ such parts of the land or naval forces of the United States as he may deem necessary to enforce the faithful execution of the laws of the United States.2

When it was evident that the authorities of the state of Illinois were not able or willing to cope with the situation, President Cleveland ordered portions of the regular army to Chicago, against the protests of Governor Altgeld. Instead of arousing opposition, this action was approved by unanimous resolutions in both branches of Congress.3

Congress is more and more frequently passing laws in general terms giving the president or his appointees great executive Tariff duties discretion. The tariff act of 1909 provided that when the

president was convinced that any country was discriminating against the commerce of the United States, he might by proclamation put into effect a higher scale of duties. The interstate commerce act of 1906 vested in the Interstate Commerce

1 H. J. Ford, The Rise and Growth of American Politics, p. 286.

2 Revised Statutes, Sects. 5298, 5299; Grover Cleveland, Presidential Problems, pp. 94-95.

3 H. J. Ford, The Rise and Growth of American Politics, pp. 286-287.

war legisla

Commission, a commission appointed and removable by the president, the power to fix not merely railroad rates but rates charged by many other public utilities. With the declaration of Emergency war against Germany numerous acts were passed which extended tion the power of the president, not merely in purely military affairs but in other fields as well. This was particularly true in regard to the regulation of prices. The president was authorized to fix the price of wheat at any figure above a minimum, to fix without limit the price of coal, coke, and copper, and regulate their distribution and commandeer any manufacturing plant engaged in producing necessaries.

discretion in enforcing

always

by the court

These acts, as well as all laws which the executive enforces, Executive are subject to executive interpretation. In case positive action is taken and private rights infringed the individual aggrieved laws not may appeal to the courts and obtain a judicial interpretation reviewable and possibly a remedy. But in many instances private rights are not affected in such a way that the action of the president can be reviewed by the courts. In these cases the interpretation of the president is final. Particularly is this true in the field where the statute gives the president discretionary power. Where the president takes no action by reason of his interpretation there is apparently no way he may be compelled to act. Thus President Roosevelt's decision that the anti-trust laws did not apply in certain instances allowed or permitted, by absence of executive action, conditions which, although sharply criticized by Congress, were beyond their power to alter.1

The other class of executive powers which may be called general are those which are derived immediately from the Constitution and may be exercised without the action of Congress. These are of a more general character than the powers expressly granted to the president by the Constitution in the classes giving him the power of appointment, pardon, and so forth, and are inherent in the executive power itself. Thus treaties are declared the supreme law of the land. How shall these

1 For example, President Roosevelt, acting upon the advice of his AttorneyGeneral, refused to order the prosecution of the United States Steel Corporation when it acquired the controlling interest in the Tennessee Coal and Iron Company.