The sun. [volume] (New York [N.Y.]) 1833-1916, 1905-06-08
OUR PRESIDENTS ARE MIGHTY.
VESTED WITH A DISCRETION
ABOVE COURTS AND CONGRESS-.
Says Charles A. Gardiner to Phi beta Kappa
Tho President Has Expanded with tile
Country While the other Depar IT.
menfs HaYa StnNd Comparatively StiI.

ITO SoiAntisbNAOioI boNACticlA VI WIG
President" was the subject Of an address
given last night by Charles A. Gardiner
at the annual meeting Of the Phi Beta
Kappa Society in the auditorium at Uni
yersity Heights Mr.. Gardiner maintained
that the Presidency is the highest Of all
the departments of our national Govern
ment, that the Presidents powers are all
discretionary and none OF them ministerial,
and that the Presidents discretion cannot
be controlled by Congress or the courts.
The laws affecting the President made by
Congress must he "for carrying into exc
cution" his powers, not for multiplying them,
while the President can nullify acts Of Con-
eress as Presidents have done, by refusing
to execute them. The President can dis
obey orders Of the upreme Court. as Presi-
dents have done, by refusing. as President.
to be accountable to the courts.
AS to the Presidents discretion, 1t is
POLITICAL and not judicial, discretion, and
deals with public, not private, interests.
As general principles controlling when two
departments of the Government disagree,
Mr. Gardiner suggested these:
First--Departments must take rank in
proportion as they promote the common
good.
Second--A lower department must al
ways yield to a higher.
Third-Whether or not given question
belongs to a lower or higher department Is
solely for the higher to determine,
The highest common good Is the preserva-
ton of the Republic. On this point Mr..
Gardiner sGid:
line great severe ignties required to pre-
serve the republic are not ipsisslmis verbs
granted in the Constitution. But they are
to the pTesd BY At bY H. o. o te
and oath. all to Be administered according
to his sole discretion. InvolvinS. as they do
in short, the perpetuity Of the republic,
they necessarily confer, on the President ent
the hsh, The ana Sshss eapac II the
promote the common good. thereby placing
him incontestably at the head Of our political
hierarchy.
While the Depart nents are independent
of each OF her in deciding each what the duty
is under the Constitution, they are nowhere
described as co-equal and the lower auto.
m,tically gives way to the higher In case OF
difference. Within one sphere the Presi-
dent has absolute right OF way and the
OF hers must yield, Mr.. Gardner said:
Our sovereignty Is not confined to our
exists wherever recognized by treaty or
ternal government 1t is coterminous with
our sovereignty. As our legislative govern
ment has practically no jurisdiction, three
exercise no foreign sovereignties: and hence
again say. unless there exists some other
al the peop fIee mnst lie
dormant. unexecuted and unused
advance the proposition that the Con:
Ct sSR' to eans at do
mestc powers and all such external SOY
%t o Y his hs is en
domestic territory and the whole world
beyond, and within ,to,e far reaching boun-
as Chief Magistrate, and his government
Is not legislative. but solely masi,terlal or
Presidential
within the masIsterial jurisdiction Of the
President is Itself ,masistera question
jurisdiction or that OF Congress is itself a
S Sa aas'on nd S0y er hs oueson
within his maeistera or political juris.
diciion or within that Of the courts is y
sole determination and over which the courts
have no review or SUPERVISION,
The President holds the power OF init-
alive and the power Of the sword-an ir-
resistible physical force. As to conflicts
tanned the Federal seo!iton law and fined
an imprisoned many persons under it.
Jefferson nullifed every decree they had
ma ,e b. RENTING the execution of the
Law because he held that it was not con-
etitrtional. Jeffeis N refused to obey a
cfse. Jackson and Lincoln refused to re-
lea prisoners on orders of the Supreme
Cpit. Roosevelt overruled the Supreme
GO " re i,on I hat Ju Toy, native Ameri-
81, CT he United States, and the Supreme
Cr'rt decides that the Presidents decision
l. conclusive and final.
a. to Congress-the sedtion law, the
Tntei 81 ates Bank and the Reconstruction
as afford instances where Jeferst n.
ia 'ison and johnson nullified the legls-
Ia w. arts.
=, to the Senate, Mr. Gardiner saws that
II e,ts il dual capacity, first as legisa-
tie CIV second as privy council to the
] s'.i ent
The President must call his privy council
eod r has San no s ds Ah That 1'a
WIN ,re President submits a treaty or sp,
r. ,'tment. the Senate cannot act. Al
dent has. not submitted the Santo Domingo
yr~tonol for example, it is not conflict OF
!ur cicn but h complaint maze c1zs WIN ma dc
it. that the President has not performed
constitutional duty. But who is TO- decide
protocol? Not the court for II is a political
0uestion:-not the Senate. for the discretion
of submission is outside It's JurlSQlctlOn Inc
question affects the Presidents maRisterial
Senate must decide his course OF action. and
whatever his decision 1t is conclusive and
final
Mr.. Gardiner concluded
| conceive that we have entered mon a
new era of political development. This Ia
the age OF executive expansion. The suprem-
acv Of Congress is giving, way before the
irresistible domination Of the President, In
l7an Congress numbered OIL members. me
Supreme Court Q. the executive force 1900.
Had all kent pace with our population. Con-
gress would now number is85, the Supreme
Court l23 and the executive force +l.Ooo.
Had all increased In proportion to our wealth
Congress would now number (3.7i. the
Supreme Court 0O6. and the executive force
$4,000. Instead. Congress now numbers
.7e, the Supreme Court and the executive
force 240, OOO.
Thus while other departments have stood
comparatively rigid and inelastic. the Ptesl-
dent has. grown with the countrys growth.
expanded with every phase OF its develop
ment and. more automatically than any other
department., has assumed those Protean
forms required for the constantly increasing
and varying demands of the republic And
this great army. 100000 strong. In rs myriad
dent, whether postmaster, in Maine or Col
bassador to Great Britain, or Chief Executive
IN the White House-it is everywhere and
ALWAYS the President. insp firing. guiding AND
dominating the irresistible onward march
Of this mighty and ever expanding people.
] rejoice in such President, ] exult in
such an Executive. l glory in such Chief
Magistrate: in ell his proportions 3 majestic,
ttt,tt rat aNtr NJ