The daily union., 1854-07-22

9est mArtr soiineetea @th tie nsv@ establishment
the United Stsies' Nothag Is said hsrs of any geners
diieciory pewwon ihs par, q liss President
finally 80 ee esiahiishiDg e Department u ihs n,e
/ fior - silent as this point
Nov upan th fi ,sisitiou of t.s statute ,~ssi.ion,
0n te mailer questions arise buih 1e substance q
inc business y ihf dsrant and ,bc VI conduct
4 AZ iHslossi.ie or congrcss 70 f6resee, and orcan-
,aniialy provide ior, al the possible future coniugeis.
ofeSecuufe business either Ia respect " ihe baes i,se
or tho manner ~ condactin ri A nsessary lis,etiop
must exst m he nature VI things scuswflsre as 10 ali snci
naiiers And thai ultimate discretion Nhen The Law docs
not SPEAK must reside q. 10 AT executive matters with the
ffosdeR who ha ihe power 10 appoint ana remove aud
whose duty Z y 10 take that ihe lava la faithfully
executed Where the laws define What is "a DC done by
given head ~ department and how he 10 30 81 there he
Presidents discretion soIs bot u te Ian rcqas
ecuuve act 10 e perormcd without say ins how hy
whom must DC for him 10 supply Che direction Ia virtue
of his powers under the constitution ho remaining subject
always 70 that 10 lle anaoeies OF a,nie and 60 gem
efai rules 81 Ian and O right And this icW Of ibo ques
ton has been followed uniformly N The practical adia-
isfratior 90 be government .Il-. .f tHtf
We shall appreciate ihe value Of this Uoaclusioa in The
sequel when We como 10 perceive ut great branches Of
public business are TO be found Bhrh assigned b,
statute 10 amy partienla depsrn or 10 which there
IS NO provision Of statute deciding a questions VI the
ner OF ransaetlng such business
The supreme Court have recognised the existence OF
such discretion, as being rsppSed ior conii
gences not only in he President IN regard TO The business
of the departments but IN the heads uf the departments
themselves BY implication OF law heeaecuiive agents
OF the President They well saw thai 10 attempt io rps
late by law the minute movements of ever, mari of thp
complicated machinery Of administration would ssnoe
complete disregard of the limits Of the possible And ,c
possible While the great lines O. ~ be
marked out and limitations be thas Imposed the
else of It's powers there nunberiess Things Ia he done
which cannot be ANTICIPATED defined but eFe neyerhe
less indispensable 70 The action OF the ovefn,neht These
things must Vi Necessity be let, wise judicous dis
creuon Omitted States Mcdaniel VII Peters United
States es. Bailey, TX Peters, s3s) h'
Question has existed the relation Of the President
and the respective heads of departments the chiefs Of
bureaus and especially the accounting officers of the treas
ury. q ~ HNt- wv tH T'iI' ~ .'. Il
is not the duty of the President, aud ia general 1t Is
not convenient for him, to cnortaa appeals from The de-
artmenS on the various matters OF business and especial
ly the private claims, which they have occasion from
time to tne 70 pass Though he is TO take care th,t the
laws be faithfully executed sil il is physically impossible
that he should do every thing in person. Therefore, the
constitution and the laws give to him agents through
whose ensrmentay the executive business may bc tras-
acted Among these the heads of departments. and
other subordinate officers of the governmeat ..H.Ls
Now from the fact that the executive agents primary
and secondary assigned by law particular duties II
has been somewhat hastily inferred that while IL udu-
baby true that he may direct the heads Of departments
yet he has authority the chiefs of bureaus
peeiay those in the Department OF Treasury II needed
only to carry this of thought step further
say that the heads Of departments themselves had
thoriy over those officers This step taken and the
doctrine 1T involves was, for time asserted Ii main
tanned, il would have been the singular condition OF
great government which the exeeuye power was vested
by constitution in the President and he had authority
the primary executive officers but neither he they had
any authority oyer the secondary executive officers and Of
| amy time, all the action OF the government.
such a doctrine WAS agtinst common sense which
sumes that the superior shall ovrule the subordinate
the llier The former contrary the settled
stitutona hepry That theory shall hereafter see
while II supposes in all matters not purely ministerial that
executive discretion exists and that udgmept continually
to be exercised yet requires unity of executive action and
of course Unity of executive deesion which By the mex
otbe necessity Of the tare of things cannot be obtained
by means OF plurality OF persons wholly Independent Of
anoter without corporate conunc,on and released
from suhection to determining will and the doctrine is
conadcted of expostons of the rule OF admin
stratiye law by successive Attorneys General alas
Thus, in controvcrted matter of military allowance
curing an act Of decisive Judgment Mr. Beren adiudged
that tla Third Auditor and the Second Comptroller
bound to take the decision Of the Secretary Of War; who
may give either by previous direction or by Subsequent
| review. Opinion, December A. 1920
Mr. fancy gave similar advice on question arising in
| thesaine department Opinion, September 10, 1917
Mr.. Butler, AIR. Johnson, aud Mr. Crtenden have affirm
ed the same doctrine And ON question raised by the
tus Of the Commissioner of Customs TO take the direc
ton Of the Secretary OF the Treasury Mr. Crendon cab
ontey reviewed the whole subject and deerrned by mn
answerablc argument the right Of the Secretary OF the
Treasury IN the given case and ~ analogy that OF other
heads OF departments IN correspondent cases (opnlon,
November 10, 1872
Meanwhile Il an opinion delivered many years ago by
Mr. Writ is now he received as law then although
auditor he aunits is subject the direction Of
the Secretary of War; the Secretary Of the Interior
other Secretary the may be yet such auditor
is wholly above the authority of the President who,
erheess directs the Secretary Had the idea presented
itself question OF the order Of business, TO the
effect that the President should upon the subordinate
officers through the heads of departments it nigh. have
answered matter of convenience but not of legal
necessity But the idea utterly excludes the authority of
the President and So while recognising the authority of
the head of department. effect makes the latter also
perior the President; which is in conflict with unyer
sally admitted principles Such, assumed anomaly Of
relation therefore, this idea supposes resting upon
opinion exposition ulst of course yield TO better
Election, whenever il comes 10 be practical question: de-
manding the reconsideration Of any Attorney General
Upon the whole then, heads OF departments have a
thteeold relation namely l. To the President whose po
ltica confidential ministers they are, TO execute his
WILL or rather net in his and by his constitutional
authority, in cases in which the President possesses con-
sututiona legal discretion q To the law for where
the law has directed them to perform certain acts, and
where the rights OF individuals dependent those
acts then in such cases head Of department Is officer
of tho law and aenable TO the laws Ear his conduct
(Marbury Madison Cranch 4o&l.l And 3. To Con-
grcss in the conditions contemplated by the constitution
This latter relaon--that of the departments to Con-
gresss OF the great elements of responsibility and e
gality il their action They created by law most of
their duties prescribed by law; Congress may AT all
times call them for information explanation in
matters Of official duty; and it may if it 6 nerpose
bylegislaon concerning them when required by the in
terests OF the government
Some further explanation may be necessary in regard to
the relation Of the departments to law represented by
the courts of Justice do speak of the response
whether in questions of indictment or of Impeachment
that is matter OF course speak of the power OF the
courts to the administrative business Of the
mcnt.
The constitution in terms the legislative power in
Congress the executive power in the President and the u
dcl power in the Supreme Court and in such inferior
courts the Congress may from time to time, ordain and
establish 1t is perfectly clear that In general and except
certain points where they necessarily touch another
such the participation of the Senate in treaties and a
/ . ". 4. r. -.