The sun. [volume] (New York [N.Y.]) 1833-1916, 1905-04-02
Nv

Four chapters Of this book are allotted
to a consideration OF the powers vested
by the Constitution in the Federal Execu-
tive For obvious reR sons, they are fTaught
with great interest at this time. On page
200 we are invited to note that. although the
administrative power OF the Federal or a a
State Government is vested in the executive
department, our type Of Government, unlike
more than one European constit tlonsl
system. does not recognize administrative
law as superior to the civil law propounded
by the courts In the United States eHecu-
tive officers. even the highest. are subject
to the law. 1t is true that our Chief Ma gis-
trate cannot be directly interfered with
by the courts in the discharge Of his duties.
Thus, Il has Heen held that courts cannot
compel the execution Of a grant OF land
by the Executive. although such execution
may be required by law; norca they enforce
bis attendance in court or before a Grand
Juryasa witness. On these questions how
ever, there is a difference Of opinion among
the courts some being inclined to assert
that, az no officer is too high to be amenable
10 law, the courts can compel the observance
OF law by the Chief Executive as well as
by any other person; while others insist
that il would be an interference on the
iudiciary's rart with Executive indie
pendenoe if the Chief Magistrate were
coerced az to his official action by the orders
Of a court or prevented from performing
his high executive functions by imprison-
ment. II is certain, on the other hand,
that the Chief Magistrate may be sued
as we'll as any other individual, and that
his private property may be taken 10 satisfy
a Judgment. Whether he could he ar
rested, tried and punished by imprison-
ment. while holding his Official position,
for crimes committed by him as an in
dividunl. and not In connection with his
official duty, Is an unsettled question. II
is undisputed that subordinate executive
officers may be directly controlled by the
courts as 10 the discharge Of their duties.
They cannot be so controlled, however
where a discretion has been given to them.
When the division Of power made by
the Constitution among the three depart
ments Of Government is discussed, II lie
often said that the peculiar duty Of the
executive department il TO enforce the
laws made by the legislative department.
In practice however the execution OF the
laws rests more directly with the judiciary
than with the executive department II
il for the courts 20 determine whether a
law has been violated in a particular case,
and what the redress or punishment shall
be. II the authority Of the court Is resisted,
then, indeed. il j. the function OF the eTecu-
tive department 90 employ the power OF
the Government, even the military power,
II necessary to uphold the authority Of
the courts and carry out their judgments.
MAY a President. in the enforcement OF the
laws. take into account the question OF
their constitutionality and disregard those
which he believes 20 be unconstitutional?
Our author answers As TO those acts
which are purely executive, and which are
not subject 20 review by the courts, IL is
plain that the President must act on his own
judgment and responsibility; on the other
hand where the Interpretation OF the Com
stitution has been announced by the judi
cary in cases properly coming before
that department. he should acquiesce in
the decisions Of the highest judicial tri-
bunal.- There is no doubt that President
Lincoln practically disregarded the bred
Scott decision in the policy Of his Admins
tration with reference to slavery, but, in
Justice McClain's opinion, he was justified
in doing 30. because that decision had not,
and could not have, any direct bearing on
the duties Of the executive department
Il il well known that, on application Of the
Legislature Of a State or Of is Executive
when the Legislature cannot be convoked)
tho President can use the military and naval
forces Of the United States to protect that
state against domestic violence. More
over, the President is authorized 70 use the
military power, not only IN enforcing
obedience to tho decisions Of the Federal
courts, but also In preventing Interference
with the performance Of GovoInmentAl