The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1866-04-03
is the President Bound to Execute an
Unconstitutional Lave

Is the President Bound to Execute an
Unconstitutional Lave
from the Worid.
This question is merely speCulative-as yet.
Considering how completely the radicals are
checkmated ia the New Jersey Legislature the
chances are good that the veto will be sustained
Even if the Civil Rights bill passes over the veto
the question of its enforcement by the Presi-
dent does not necessarily become practical. As
the bill is drawn, its execution depends mainly
on the judiciary. The swarms OF new officers it
contemplates are not appointees of the Pres-
dent, but Of the various Circuit Courts. The
Courts are to appoint as many Commissioner as
they please; and these Commissioners in turn,
can appoint as many persons as they please to
make arrests and execute their process. True
the President is several times alluded to in the
oil; but the powers 1t clothes him with are
merely permissiye, not mandatory. He ''mdyr
empower persons to execute the act; 'it shall
be ldlgta" for him to ORDER the courts to hold
extra sessions at unusual places for the trial of
offenders; lit shsE be lawful" for him to employ
the army to enforce the provisions of the act
He has the color OF law to help him If be
chooses to exercise the power; but there is
nothing in the act to COnst1ain his choice.
The bill might have been differently drawn
1t might have run--''The President shall ap-
point by and with the advice OF the Senate,n
the new officers charged with the execution of
its non-eXecution, the judges Of the Circuit
Courts would be the culprits; the bill declaring
that sit shall be their duty" "a form not merely
peImssIve, but mandatory to appoint the addi-
tonal CommisslonerS necessary. The question
OF impeaching the President cannot arise under
this BILL even if it should become law.
But the ability to pass this bill over his veto
implies the ability to pass other unConsttu-
tional laws, in like manner. When the radicals
feel sure of their power other acts will be passed
requiring the cooperation OF the President in
their enforcement against his sense of constltu-
tional obligation. What would be his duty in
such case is grave question, which he must
decide iorEhmselt, if it should arise. Power to
pass laws over his veto is power enough TO i'm
peach and depose him; and AS the radicals as
sume that law is constitutional in passing it,
they would also assume that il was cOnstitu-
tional in ccnGemning the President Tor its non
enforcement. Under such circumstances, many
important and delicate questions would arise.
Ought the President to cooperate in strategem
for his removal, by acting precisely as his oppo-
nents would wish! Ought he, on the other
hand, to lend himself to break down the Consti-
tuition? Would such a revolutionary attempt to
put compliant Republican in his place justify
tOrcible resistance?
OF these points, which are as yet, merely
speculative, we will consider but one The Pre-
sident being sworn to preserve, protect, and
defend the Constitution of the United States"
can be under no obligation to execute law
clearly repugnant thereto. The Constitution
being the supreme law, all laws in conflict with
il are void, and should be disregarded or re-
sisted, as the case may require, But this prn-
Ciple can extend only to the action of the EXeeu-
tive. The President can refuse to act under an
unconstitutional law; bat he cannot Interfere to
control the action OF the Courts who will enforce
it, or declare it unconstitutional, in the indie
pendent exercise of their own Judgment. If an
unconstitutional law declares penalties and the
Courts convict and pass sentence, the President
has no more power to dictate to the judges than
the Judges to HIM. But after sentence, complete
control over it belongs TO the President by his
power to grant repreves and pardons. Even
where the law is constitutional, he has this
authority, with no limit on its exercise but his
own discretion. In the case of an unconsttu-
tional law, he would be justified in caDcelllng
every sentence by pardon-a prerogative with
which neither the Legislative nor the judicial De-
! partment can interfere as he derives it directly
! from the Constitution.
If President johnson should assert the inde-
pendent right OF the Executive TO Judge for himself
! OF constitutional questions connected with his
| own duties, he could adduce the authority of
! the two most eminent aud illustTious of his
| Democratic deCessOrs-Presidents Jefferson
| and Jackson. The following exposition, by jet
ierson, Of his views on the subject, is worth re-
! calling; il is from a letter TO Judge Roane;-
! my construction of the Constitution is very
6lteTent from what you quote. 1t is that each
| department IS truly independent of the others,
| and has an equal right to decide for itself what
! is the meaning of the Constitution In Ehe cases
! submitted 10 its action; and especially when II
/ is 10 act ultimately and without appeal | will
| explain myself by examples, which, having
occurred while was IN office, are better known
| to me, and the principles which governed them.
"a legislature had passed the Sedtion law.
| The Federal courts had subjected certain indi-
Wduals TO its penalties of 6ne and Imprisonment.
| On coming into office, ] released these indi
| Yiduals by the power of pardon committed to
| Executive discretion, which could never be more
appropriately exercised than when citizens were
suffering without the authority of Law, or, which
was equivalent, under a law unauthorized by the
Cons tltution, and therefore null In the case OF
MaIbury aud Madison, the Federal judges de
clared that commissions signed and sealed by thC
President we're valid, although not delivered.
deemed delivery essential TO complete a deed
which as long as it remains in the hands of the
party is, as yet, no deed, and | withheld
the delivery of the commissions. They
cannot issue a mandamus to the Presiden
OF the Legislature, or to any OF their officers
When the British treaty OF - arrived, without
any provision against the impressment Of on
seamen / determined not to ratify it. Thu
Senate thought l should ask their advice
thought that would be mockery OF them, whel
/ was predetermined against following it, shoul,
they advise its ratification. The Constitution
had made their advice necessary to confirm
treaty, but not TO reject il. This has been blame
by some, but have never doubted its SOUND
ness. In the cases OF two persons dnte-adt
under exactly similar circumstances, the Fedora
Court determined that one of them (Duane) wa
not a citizen; the House OF Representative
nevertheless determined that the other lSmitl