Tuesday, December 6, 2011

The Authority of the Executive

An important difference between the Roosevelt and the Taft Administration has been thus stated by a shrewd observer of public life at Washington: "When a desirable course of action was proposed to the Roosevelt Administration, the proposal was met with the question, 'Is there any law against it?' 'No I' 'Then go ahead and do it.' If it is proposed to the Taft Administration, the proposal is met by the question, 'Is there any law for it?' 'No!' 'Then we must ask Congress for a law.'"

That this somewhat dramatically interprets a real difference between the two Administrations we do not doubt—a difference partly in temperament, partly in principle. In so far as it is temperamental, it is incapable of definition. It can only be said that one Administration is more eager, the other more cautious; one puts greater emphasis on results, the other on methods; one is impatient to achieve, the other waits to consider; one assumes authority if it has not been denied, the other assumes no authority until it has been granted; one is Napoleonic, the other Fabian; one is militant, the other legal; both seek the same end, both are progressive, both approve the proverb, '• Make haste slowly," but one lays the emphasis on "haste," the other on " slowly;" the danger in the one temperament is too great expedition, the danger in the other disastrous delay. When the question is, Shall the public welfare or private interests take precedence? the dangers in delay are not inconsiderable.

The difference in principle may be somewhat more accurately defined.

We may hold that the Congress is the sole representative of the people, and that the Executive Department has nothing to do but to carry out the will of the people as it is expressed by the Acts of the Congress. Or we may hold that the Executive is equally with the Congress the representative of the people, and is empowered to exercise for the people all the functions that in free, popular government are exercised by the Executive Department. In the one case the Congress is the servant of the people, and the Executive is the servant of the Congress. In the other case both are servants of the people, with commensurate powers, so that the Executive is no more dependent on the Congress for authority to perform its legitimate executive functions than the Congress is dependent on the Executive for authority to perform its legitimate legislative functions.

The distinction may be made clear to our readers by a historical parallel.

The Constitution of the United States provides for a Judicial, an Executive, and a Legislative Department. It left the Congress to organize the Judicial Department, and the Congress has done so. The Federal courts, though called for by the Constitution, were organized by the Congress. But, having been organized, they are independent of the Congress. They have a right to exercise all the functions which, historically, in a free Commonwealth belong to the courts. They are even, in some respects, superior to the "Congress. For they can, and sometimes do, declare that the Congress has exceeded its Constitutional powers in enacting certain legislation, in which case that legislation is set aside as unconstitutional and void. And this power of the courts to set aside the legislation of the Congress which organized them, though at first resisted, is now universally acquiesced in. The Outlook holds that, in a somewhat analogous manner, the Executive is authorized to exercise all the functions which in free constitutional governments belong to the Executive Department. It is not confined to doing those things which the Congress has authorized it to do. Its authority is not derived from the Congress. It is derived from the same source from which the Congress derives its authority—

the people. It may do without authority from the Congress whatever the principles and usages of free governments allow the Executive Department to do, unless it is prohibited by the Constitution, or by the explicit provisions or the necessary implications of Congressional legislation. How far the Congress can go in limiting the powers of the Judiciary—whether, for example, it can prohibit the courts from issuing injunctions—is a question on which Constitutional lawyers are not agreed. How far the Congress can go in limiting by legislation the powers of the Executive we do not here discuss. It is enough to affirm that the Executive need not wait for a law of the Congress in order to take such executive action as is called for by the public interest and is not prohibited by the Constitution or by law.

We are here attempting to define a principle rather than to defend it. But there are certain fundamental facts which appear to us to sustain the principle that the Executive is not dependent on legislation for its authority. The facts are such as these: The Constitution which creates the Congress creates also the Judicial and Executive Departments; the Judicial Department continually exercises in the public interest authority not specifically conferred by any explicit legislation; it is difficult to see why the Executive Department, deriving its authority through the same instrument, should not act upon the same principle. The Chief Executive is elected by the people and is responsible to the people; he is not, as in England, dependent upon the legislative body, responsible to the legislative body, nor chosen directly or indirectly by the legislative body; he is no longer even nominated by a Congressional caucus. There is therefore little ground to claim that he must look to the legislative body for authority to act.

This question, whether the Executive may do whatever the Congress has not prohibited or only what the Congress has authorized, is not an abstract one, of interest only to the Constitutional lawyer. It is a very practical one, and of immediate and pressing interest to all the people of the United States. They are the owners of large landed estates, including great forests, large mining tracts, and valuable water powers. These estates are held in trust for them by the Secretary of the Interior. If we are right in the view here taken, the Secretary of the Interior has authority, in protecting the interests of the people in these estates, to do whatever any trustee might do to protect the interests of his ward. He is not bound to wait for any special authority from the Congress. He may retain possession of these estates for the benefit of the people until and unless the Congress by definite action requires him to dispose of them to private owners. If he acts upon this principle, the public interests in the public's lands will be safe. For while the inertia of the Congress might prevent it from taking any affirmative action to guard those interests against spoliation, it is reasonably certain that, with public attention focused upon this question, the Congress will not by affirmative legislation dispose of these estates belonging to its constituents without some provision for protecting their rights and safeguarding their interests.

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