Year: 1868

Robert j. Walker, Of whose DemocIa-
cythere can be no possible doubt, in hisgreat
argument in the Mississippi case, held the
following language IN regard 10 the Presi-
dents duty to execute all the laws Of Con
gress, without reference to their constltu-
tioBality.


And here let me say a word in yindica-
ton of the President, who has been greatly
eensared, especially by a large portion OF
the Secession press Of the South, for carry
ing into execution On act which he had
vetoed upon the ground thatit was uncon-
stitutlonaL When bill Is presented TO the
President, he is bound to inquire into Its
Observation-Disclosures he gives his approval.
He is then co o-operatiod with the legislative
department Of the government. 1T he de
ellnes to sign il and it is passed By tWo-thlrds
majority o. Congress, II Is as much an act OF
Congress as II it had received the sanction
of the President; and il necessarily follows
that, under the obligation imposed upon
him by the Constitution to see that the laws
are faithfully executed, he is as much bound
70 execute that act as one which met his tul-
lest approval. Why? Because the President
possesses no judicial power; nor does Con-
gTess. If Congress were to convert Itself into
Judicial body, and the two Houses should
60 into Committee Of the Whole to inquire
into the constitutionality of particular act,
their resolution on that subject would be q
mere nullity, because they possess legislative
power. So the President had 90 right to
judge of the Canstitutionality Of an act of
Congress after it had become q law, that
being a judicial question If this were not
so ii would be the right, and therefore the
duty, Of every successive President, SO soon
as he was inaugurated, 70 take up the hund-
reds Of volumes containing all the acts of
Congress, and inquire judicially which of
them were constitutional and which not, and
carry into execution those which he believed
to be constitutional and refuse to execute
these which he believed 70 be unconstitu-
tiona- | say the President would be usur-
ping the Judicial function and overthrowing
the distinction created BY the Constitution
between the co ordinate departments of the
Government if be were to attempt to ex-
ercisc such power as that. He has no dis
cretioH except to execute the act; and that
important fact goes TO the very gist of the
matter.


When an application is made for a man
damus TO compel the performance Of an act,
or an injunction to restrain the execution of
an Illegal act, it depends upon whether the
executive officers have discretion in either
case to the judge Of the law, and right to
execute it or not at their pleasure. If they
have no discretion, and the law positively
commands the execution Of particular act,
the remedy IS by mandamus TO act afarma-
lively; if the law forbids peremptorily the
execution Of an act, then, where it can be
made judicial question, the appeals to
the judicial tribunals, and especially where
the question is a constitutional one. In
this case the President has no discretion ex-
cept to execute the law; the subordinate
officers who are obeying his commands have
no discretion, except to carry his orders IN
to effect; and there Is no discretion in such
a case between an executive and ministe-
rial duty