The presidential election is in 15 days and so I thought it would be useful to provide some background on the powers of the presidency as laid out in the United States Constitution.
Article II of the United States Constitution
The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years. . .
Before he enter on the execution of his office, he shall take the following oath or affirmation:–“I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”
The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.
He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.
Design of the Executive
Joseph Story in his Commentaries in the Constitution provides a useful overview of the discussions that occurred during the Constitutional Convention regarding the design of the national executive.
§ 1407. Under the [Articles of] confederation there was no national executive. The whole powers of the national government were vested in a congress, consisting of a single body; and that body was authorized to appoint a committee of the states, composed of one delegate from every state, to sit in the recess, and to delegate to them such of their own powers, not requiring the consent of nine states, as nine states should consent to. This want of a national executive was deemed a fatal defect in the confederation.
§ 1408. In the convention, there does not seem to have been any objection to the establishment of a national executive. But upon the question, whether it should consist of a single person, the affirmative was carried by a vote of seven states against three. The term of service was at first fixed at seven years, by a vote of five states against four, one being divided. The term was afterwards altered to four years, upon the report of a committee, and adopted by the vote of ten states against one.
Powers of the President
Again, Joseph Story’s Commentaries provide a useful overview of the president’s powers.
The President as Commander-in-Chief:
The propriety of admitting the president to be commander-in-chief, so far as to give orders, and have a general superintendency, was admitted. But it was urged, that it would be dangerous to let him command in person without any restraint, as he might make a bad use of it. The consent of both houses of congress ought, therefore, to be required, before he should take the actual command. The answer then given was, that though the president might, there was no necessity, that he should, take the command in person; and there was no probability, that he would do so, except in extraordinary emergencies, and when he was possessed of superior military talents. But if his assuming the actual command depended upon the assent of congress, what was to be done, when an invasion, or insurrection took place during the recess of congress? Besides; the very power of restraint might be so employed, as to cripple the executive department, when filled by a man of extraordinary military genius. The power of the president, too, might well be deemed safe; since he could not, of himself, declare war, raise armies, or call forth the militia, or appropriate money for the purpose; for these powers all belonged to congress.2 in Great Britain, the king is not only commander-in-chief of the army, and navy, and militia, but he can declare war; and, in time of war, can raise. armies and navies, and call forth the militia of his own mere will. So, that (to use the words of Mr. Justice Blackstone) the sole supreme government and command of the militia within all his majesty’s realms and dominions, and of all forces by sea and land, and of all forts and places of strength, ever was and is the undoubted right of his majesty; and both houses or either house of parliament cannot, nor ought to pretend to the same. The only power of check by parliament is, the refusal of supplies; and this is found to be abundantly sufficient to protect the nation against any war against the sense of the nation, or any serious abuse of the power in modern times.
Opinions in Writing from Heads of Executive Departments:
§ 1487. The next provision is, as to the power of the president, to require the opinions in writing of the heads of the executive departments. It has been remarked, that this is a mere redundancy, and the right would result from the very nature of the office. Still, it is not without use, as it imposes a more strict responsibility, and recognises a public duty of high importance and value in critical times. It has, in the progress of the government, been repeatedly acted, upon; but by no president with more wisdom and propriety, than by President Washington.
Powers to Grant Reprieves and Pardons:
§ 1488. The next power is, “to grant reprieves and pardons.” It has been said by the marquis Beccaria, that the power of pardon does not exist under a perfect administration of the laws; and that the admission of the power is a tacit acknowledgment of the infirmity of the course of justice. But if this be a defect at all, it arises from the infirmity of human nature generally; and in this view, is no more objectionable, than any other power of government; for every such power, in some sort, arises from human infirmity. But if it be meant, that it is an imperfection in human legislation to admit the power of pardon in any case, the proposition may well be denied, and some proof, at least, be required of its sober reality. The common argument is, that where punishments are mild, they ought to be certain; and that the clemency of the chief magistrate is a tacit disapprobation of the laws. But surely no man in his senses will contend, that any system of laws can provide for every possible shade of guilt, a proportionate degree of punishment. The most, that ever has been, and ever can be done, is to provide for the punishment of crimes by some general rules, and within some general limitations. The total exclusion of all power of pardon would necessarily introduce a very dangerous power in judges and juries, of following the spirit, rather than the letter of the laws; or, out of humanity, of suffering real offenders wholly to escape punishment; or else, it must be holden, (what no man will seriously avow,) that the situation and circumstances of the offender, though they alter not the essence of the offence, ought to make no distinction in the punishment. There are not only various gradations of guilt in the commission of the same crime, which are not susceptible of any previous enumeration and definition; but the proofs must, in many cases, be imperfect in their own nature, not only as to the actual commission of the offence, but also, as to the aggravating or mitigating circumstances. In many cases, convictions must be founded upon presumpions and probabilities. Would it not be at once unjust and unreasonable to exclude all means of mitigating punishment, when subsequent inquiries should demonstrate, that the accusation was wholly unfounded, or the crime greatly diminished in point of atrocity and aggravation, from what the evidence at the trial seemed to establish? A power to pardon seems, indeed, indispensable under the most correct administration of the law by human tribunals; since, otherwise, men would sometimes fall a prey to the vindictiveness of accusers, the inaccuracy of testimony, and the fallibility of jurors and courts. Besides; the law may be broken, and yet the offender be placed in such circumstances, that he will stand, in a great measure, and perhaps wholly, excused in moral and general justice, though not in the strictness of the law. What then is to be done? Is he to be acquitted against the law; or convicted, and to suffer punishment infinitely beyond his deserts? If an arbitrary power is to be given to meet such cases, where can it be so properly lodged, as in the executive department?
§ 1489. Mr. Justice Blackstone says, that “in democracies, this power of pardon can never subsist; for, there, nothing higher is acknowledged, than the magistrate, who administers the laws; and it would be impolitic for the power of judging, and of pardoning to center in one and the same person. This (as the president Montesquieu, observes) would oblige him very often to contradict himself, to make and unmake his decisions. It would tend to confound all ideas of right among the mass of the people, as they would find it difficult to tell, whether a prisoner was discharged by his innocence, or obtained a pardon through favour.” And hence, he deduces the superiority of a monarchical government; because in monarchies, the king acts in a superior sphere; and may, therefore, safely be trusted with the power of pardon, and it becomes a source of personal loyalty and affection.
§ 1490. But, surely, this reasoning is extremely forced and artificial. In the first place, there is [no] more difficulty or absurdity in a democracy, than in a monarchy, in such cases, if the power of judging and pardoning be in the same hands; as if the monarch be at once the judge, and the person, who pardons. And Montesquieu’s reasoning is in fact addressed to this very case of a monarch, who is at once the judge, and dispenser of pardons. In the next place, there is no inconsistency in a democracy any more, than in a monarchy, in entrusting one magistrate with a power to try the cause, and another with a power to pardon. The one power is not incidental to, but in contrast with the other. Nor, if both powers were lodged in the same magistrate, would there be any danger of their being necessarily confounded; for they may be required to be acted upon separately, and at different times, so as to be known as distinct prerogatives. But, in point of fact, no such reasoning has the slightest application to the American governments, or, indeed, to any others, where there is a separation of the general departments of government, legislative, judicial, and executive, and the powers of each are administered by distinct persons. What difficulty is there in the people delegating the judicial power to one body of magistrates, and the power of pardon to another, in a republic any more, than there is in the king’s delegating the judicial power to magistrates, and reserving the pardoning power to himself, in a monarchy? In truth, the learned author, in his extreme desire to recommend a kingly form of government, seems on this, as on many other occasions, to have been misled into the most loose and inconclusive statements. There is not a single state in the Union, in which there is not by its constitution a power of pardon lodged in some one department of government, distinct from the judicial. And the power of remitting penalties is in some cases, even in England, entrusted to judicial officers.
§ 1491. So far from the power of pardon being incompatible with the fundamental principles of a republic, it may be boldly asserted to be peculiarly appropriate, and safe in all free states; because the power can there be guarded by a just responsibility for its exercise. Little room will be left for favouritism, personal caprice, or personal resentment. If the power should ever be abused, it would be far less likely to occur in opposition, than in obedience to the will of the people. The danger is not, that in republics the victims of the law will too often escape punishment by a pardon; but that the power will not be sufficiently exerted in cases, where public feeling accompanies the prosecution, and assigns the ultimate doom to persons, who have been convicted upon slender testimony, or popular suspicions.
§ 1492. The power to pardon, then, being a fit one to be entrusted to all governments, humanity and sound policy dictate, that this benign prerogative should be, as little as possible, fettered, or embarrassed. The criminal code of every country partakes so much of necessary severity, that, without an easy access to exceptions in favour of unfortunate guilt, justice would assume an aspect too sanguinary and cruel. The only question is, in what department of the government it can be most safely lodged; and that must principally refer to the executive, or legislative department. The reasoning in favour of vesting it in the executive department may be thus stated. A sense of responsibility is always strongest in proportion, as it is undivided. A single person would, therefore, be most ready to attend to the force of those motives, which might plead for a mitigation of the rigour of the law; and the least apt to yield to considerations, which were calculated to shelter a fit object of its vengeance. The consciousness, that the life, or happiness of an offender was exclusively within his discretion, would inspire scrupulousness and caution; and the dread of being accused of weakness, or connivance, would beget circumspection of a different sort. On the other hand, as men generally derive confidence from numbers, a large assembly might naturally encourage each other in acts of obduracy, as no one would feel much apprehension of public censure. A public body, too, ordinarily engaged in other duties, would be little apt to sift cases of this sort thoroughly to the bottom, and would be disposed to yield to the solicitations, or be guided by the prejudices of a few; and thus shelter their own acts of yielding too much, or too little, under the common apology of ignorance, or confidence. A single magistrate would be compelled to search, and act upon his own responsibility; and therefore would be at once a more enlightened dispenser of mercy, and a more firm administrator of public justice.
§ 1493. There are probably few persons now, who would not consider the power of pardon in ordinary cases, as best deposited with the president. But the expediency of vesting it in him in any cases, and especially in cases of treason, was doubted at the time of adopting the constitution; and it was then urged, that it ought at least in cases of treason to be vested in one, or both branches of the legislature. That there are strong reasons, which may be assigned in favour of vesting the power in congress in cases of treason, need not be denied. As treason is a crime levelled at the immediate existence of society, when the laws have once ascertained the guilt of the offender, there would seem to be a fitness in referring the expediency of an act of mercy towards him to the judgment of the legislature. But there are strong reasons also against it. Even in such cases a single magistrate, of prudence and sound sense, would be better fitted, than a numerous assembly, in such delicate conjunctures, to weigh the motives for and against the remission of the punishment, and to ascertain all the facts without undue influence. The responsibility would be more felt, and more direct. Treason, too, is a crime, that will often be connected with seditions, embracing a large portion of a particular community; and might under such circumstances, and especially where parties were nearly poised, find friends and favourites, as well as enemies and opponents, in the councils of the nation. So, that the chance of an impartial judgment might be less probable in such bodies, than in a single person at the head of the nation.
§ 1494. A still more satisfactory reason is, that the legislature is not always in session; and that their proceedings must be necessarily slow, and are generally not completed, until after long delays. The inexpediency of deferring the execution of any criminal sentence, until a long and indefinite time after a conviction, is felt in all communities. It destroys one of the best effects of punishment, that, which arises from a prompt and certain administration of justice following close upon the offence. If the legislature is invested with the authority to pardon, it is obviously indispensable, that no sentence can be properly executed, at least in capital cases, until they have had time to act. And a mere postponement of the subject from session to session would be naturally sought by all those, who favoured the convict, and yet doubted the success of his application. In many cases delay would be equivalent to a pardon, as to its influence upon public opinion, either in weakening the detestation of the crime, or encouraging the commission of it. But the principal argument for reposing the power of pardon in the executive magistrate in cases of treason is, that in seasons of insurrection, or rebellion, there are critical moments, when a well-timed offer of pardon to the insurgents, or rebels, may restore the tranquillity of the Commonwealth; and if these are suffered to pass unimproved, it may be impossible afterwards to interpose with the same success. The dilatory process of convening the legislature, or one of the branches, for the purpose of sanctioning such a measure, would frequently be the loss of the golden opportunity. The loss of a week, of a day, or even of an hour may sometimes prove fatal. If a discretionary power were confided to the president to act in such emergencies, it would greatly diminish the importance of the restriction. And it would generally be impolitic to hold out, either by the constitution or by law, a prospect of impunity by confiding the exercise of the power to the executive in special cases; since it might be construed into an argument of timidity or weakness, and thus have a tendency to embolden guilt. In point of fact, the power has always been found safe in the hands of the state executives in treason, as well as in other cases; and there can be no practical reason, why it should not be equally safe with the executive of the Union.
§ 1495. There is an exception to the power of pardon, that it shall not extend to cases of impeachment, which takes from the president every temptation to abuse it in cases of political and official offences by persons in the public service. The power of impeachment will generally be applied to persons holding high offices under the government; and it is of great consequence, that the president should not have the power of preventing a thorough investigation of their conduct, or of securing them against the disgrace of a public conviction by impeachment, if they should deserve it. The constitution has, therefore, wisely interposed this check upon his power, so that he cannot, by any corrupt coalition with favourites, or dependents in high offices, screen them from punishment.
§ 1496. In England (from which this exception was probably borrowed) no pardon can be pleaded in bar of an impeachment. But the king may, after conviction upon an impeachment pardon the offender. His prerogative, therefore, cannot prevent the disgrace of a conviction; but it may avert its effects, and restore the offender to his credit. The president possesses no such power in any case of impeachment; and, as the judgment upon a conviction extends no farther, than to a removal from office, and disqualification to hold office, there is not the same reason for its exercise after conviction, as there is in England; since (as we have seen) the judgment there, so that it does not exceed what is allowed by law, lies wholly in the breast of the house of lords, as to its nature and extent, and may, in many cases, not only reach the life, but the whole fortune of the offender.
§ 1497. It would seem to result from the principle, on which the power of each branch of the legislature to punish for contempts is founded, that the executive authority cannot interpose between them and the offender. The main object is to secure a purity, independence, and ability of the legislature adequate to the discharge of all their duties. If they can be overawed by force, or corrupted by largesses, or interrupted in their proceedings by violence, without the means of self-protection, it is obvious, that they will soon be found incapable of legislating with wisdom or independence. If the executive should possess the power of pardoning any such offender, they would be wholly dependent upon his good will and pleasure for the exercise of their own powers. Thus, in effect, the rights of the people entrusted to them would be placed in perpetual jeopardy. The constitution is silent in respect to the right of granting pardons in such cases, as it is in respect to the jurisdiction to punish for contempts. The latter arises by implication; and to make it effectual the former is excluded by implication.
§ 1498. Subject to these exceptions, (and perhaps there may be others of a like nature standing on special grounds,) the power of pardon is general and unqualified, reaching from the highest to the lowest offences. The power of remission of fines, penalties, and forfeitures is also included in it; and may in the last resort be exercised by the executive, although it is in many cases by our laws confided to the treasury department. No law can abridge the constitutional powers of the executive department, or interrupt its right to interpose by pardon in such cases.
Power to Make Treaties:
§ 1500. The first power, “to make treaties,” was not in the original draft of the constitution; but was afterwards reported by a committee; and after some ineffectual attempts to amend, it was adopted, in substance, as it now stands, except, that in the report the advice and consent of two thirds of the senators was not required to a treaty of peace. This exception was struck out by a vote of eight states against three. The principal struggle was, to require two thirds of the whole number of members of the senate, instead of two thirds of those present.
§ 1502. The power “to make treaties” is by the constitution general; and of course it embraces all sorts of treaties, for peace or war; for commerce or territory; for alliance or succours; for indemnity for injuries or payment of debts; for the recognition and enforcement of principles of public law; and for any other purposes, which the policy or interests of independent sovereigns may dictate in their intercourse with each other.4 But though the power is thus general and unrestricted, it is not to be so construed, as to destroy the fundamental laws of the state. A power given by the constitution cannot be construed to authorize a destruction of other powers given in the same instrument. It must be construed, therefore, in subordination to it; and cannot supersede, or interfere with any other of its fundamental provisions.1 Each is equally obligatory, and of paramount authority within its scope; and no one embraces a right to annihilate any other. A treaty to change the organization of the government, or annihilate its sovereignty, to overturn its republican form, or to deprive it of its constitutional powers, would be void; because it would destroy, what it was designed merely to fulfil, the will of the people. Whether there are any other restrictions; necessarily growing out of the structure of the government, will remain to be considered, whenever the exigency shall arise.2
§ 1503. The power of making treaties is indispensable to the due exercise of national sovereignty, and very important, especially as it relates to war, peace, and commerce. That it should belong to the national government would seem to be irresistibly established by every argument deduced from experience, from public policy, and a close survey of the objects of government. It is difficult to circumscribe the power within any definite limits, applicable to all times and exigencies, without impairing its efficacy, or defeating its purposes. The constitution has, therefore, made it general and unqualified. This very circumstance, however, renders it highly important, that it should be delegated in such a mode, and with such precautions, as will afford the highest security, that it will be exercised by men the best qualified for the purpose, and in the manner most conducive to the public good.1 With such views, the question was naturally presented in the convention, to what body shall it be delegated? It might be delegated to congress generally, as it was under the confederation, exclusive of the president, or in conjunction with him. It might be delegated to either branch of the legislature, exclusive of, or in conjunction with him. Or it might be exclusively delegated to the president.
§ 1507. The plan of the constitution is happily adapted to attain all just objects in relation to foreign negotiations. While it confides the power to the executive department, it guards it from serious abuse by placing it under the ultimate superintendence of a select body of high character and high responsibility. It is indeed clear to a demonstration, that this joint possession of the power affords a greater security for its just exercise, than the separate possession of it by either.1 The president is the immediate author and finisher of all treaties; and all the advantages, which can be derived from talents, information; integrity, and deliberate investigation on the one hand, and from secrecy and despatch on the other, are thus combined in the system.2 But no treaty, so formed, becomes binding upon the country, unless it receives the deliberate assent of two thirds of the senate. In that body all the states are equally represented; and, from the nature of the appointment and duration of the office, it may fairly be presumed at all times to contain a very large portion of talents, experience, political wisdom, and sincere patriotism, a spirit of liberality, and a deep devotion to all the substantial interests of the country. The constitutional check of requiring two thirds to confirm a treaty is, of itself, a sufficient guaranty against any wanton sacrifice of private rights, or any betrayal of public privileges. To suppose otherwise would be to suppose, that a representative republican government was a mere phantom; that the state legislatures were incapable, or unwilling to choose senators possessing due qualifications; and that the people would voluntarily confide power to those, who were ready to promote their ruin, and endanger, or destroy their liberties. Without supposing a case of utter indifference, or utter corruption in the people, it would be impossible, that the senate should be so constituted at any time, as that the honour and interests of the country would not be safe in their hands. When such an indifference, or corruption shall have arrived, it will be in vain to prescribe any remedy; for the constitution will have crumbled into ruins, or have become a mere shadow, about which it would be absurd to disquiet ourselves.
The Appointment Power
The president is to nominate, and thereby has the sole power to select for office; but his nomination cannot confer office, unless approved by a majority of the senate. His responsibility and theirs is thus complete, and distinct. He can never be compelled to yield to their appointment of a man unfit for office; and, on the other hand, they may withhold their advice and consent from any candidate, who in their judgment does not possess due qualifications for office. Thus, no serious abuse of the power can take place without the co-operation of two co-ordinate branches, of the government, acting in distinct spheres; and, if there should be any improper concession on either side, it is obvious, that from the structure and changes, incident to each department, the evil cannot long endure, and will be remedied, as it should be, by the elective franchise. The consciousness of this check will make the president more circumspect, and deliberate in his nominations for office. He will feel, that, in case of a disagreement of opinion with the senate, his principal vindication must depend upon the unexceptionable character of his nomination. And in case of a rejection, the most, that can be said, is, that he had not his first choice. He will still have a wide range of selection; and his responsibility to present another candidate, entirely qualified for the office, will be complete and unquestionable.
§ 1526. Nor is it to be expected, that the senate will ordinarily fail of ratifying the appointment of a suitable person for the office. Independent of the desire, which such a body may naturally be presumed to feel, of having offices suitably filled, (when they cannot make the appointment themselves,) there will be a responsibility to public opinion for a rejection, which will overcome all common private wishes. Cases, indeed, may be imagined, in which the senate from party motives, from a spirit of opposition, and even from motives of a more private nature, may reject a nomination absolutely unexceptionable. But such occurrences will be rare. The more common error, (if there shall be any) will be too great a facility to yield to the executive wishes, as a means of personal, or popular favour. A president will rarely want means, if he shall choose to use them, to induce some members of such a body to aid his nominations; since a correspondent influence may be fairly presumed to exist, to gratify such persons in other recommendations for office, and thus to make them indirectly the dispensers of local patronage. It will be, principally, with regard to high officers, such as ambassadors, judges, heads of departments, and other appointments of great public importance, that the senate will interpose to prevent an unsuitable choice. Their own dignity, and sense of character, their duty to their country, and their very title to office will be materially dependent upon a firm discharge of their duty on such occasions.1
§ 1527. Perhaps the duties of the president, in the discharge of this most delicate and important duty of his office, were never better summed up, than in the following language of a distinguished commentator.2 “A proper selection and appointment of subordinate officers is one of the strongest marks of a powerful mind. It is a duty of the president to acquire, as far as possible, an intimate knowledge of the capacities and characters of his fellow citizens; to disregard the importunities of friends; the hints or menaces of enemies; the bias of party, and the hope of popularity. The latter is sometimes the refuge of feeble-minded men; but its gleam is transient, if it is obtained by a dereliction of honest duty and sound discretion. Popular favour is best secured by carefully ascertaining, and strictly pursuing the true interests of the people. The president himself is elected on the supposition, that he is the most capable citizen to understand, and promote those interests; and in every appointment he ought to consider himself as executing a public trust of the same nature. Neither should the fear of giving offence to the public, or pain to the individual, deter him from the immediate exercise of his power of removal, on proof of incapacity, or infidelity in the subordinate officer. The public, uninformed of the necessity, may be surprised, and at first dissatisfied; but public approbation ultimately accompanies the fearless and upright discharge of duty.”
Power to Make Recess Appointments
§ 1550. This clause was not in the first draft of the constitution; but was afterwards inserted by an amendment, apparently without objection.
§ 1551. The propriety of this grant is so obvious, that it can require no elucidation. There was but one of two courses to be adopted; either, that the senate should be perpetually in session, in order to provide for the appointment of officers; or, that the president should be authorized to make temporary appointments during the recess, which should expire, when the senate should have had an opportunity to act on the subject. The former course would have been at once burthensome to the senate, and expensive to the public. The latter combines convenience, promptitude of action, and general security.
§ 1552. The appointments so made, by the very language of the constitution, expire at the next session of the senate; and the commissions given by him have the same duration. When the senate is assembled, if the president nominates the same officer to the office, this is to all intents and purposes a new nomination to office; and, if approved by the senate, the appointment is a new appointment, and not a mere continuation of the old appointment. So that, if a bond for fidelity in office has been given under the first appointment and commission, it does not apply to any acts done under the new appointment and commission.
State of the Union
§ 1555. The first part, relative to the president’s giving information and recommending measures to congress, is so consonant with the structure of the executive departments of the colonial, and state governments, with the usages and practice of other free governments, with the general convenience of congress, and with a due share of responsibility on the part of the executive, that it may well be presumed to be above all real objection. From the nature and duties of the executive department, he must possess more extensive sources of information, as well in regard to domestic as foreign affairs, than can belong to congress. The true workings of the laws; the defects in the nature or arrangements of the general systems of trade, finance, and justice; and the military, naval, and civil establishments of the Union, are more readily seen, and more constantly under the view of the executive, than they can possibly be of any other department. There is great wisdom, therefore, in not merely allowing, but in requiring, the president to lay before congress all facts and information, which may assist their deliberations; and in enabling him at once to point out the evil, and to suggest the remedy. He is thus justly made responsible, not merely for a due administration of the existing systems, but for due diligence and examination into the means of improving them.
Power to Convene Congress on Extraordinary Occasions and Adjourn Houses of Congress in Cases of Disagreement
§ 1556. The power to convene congress on extraordinary occasions is indispensable to the proper operations, and even safety of the government. Occasions may occur in the recess of congress, requiring the government to take vigorous measures to repel foreign aggressions, depredations, and direct hostilities; to provide adequate means to mitigate, or overcome unexpected calamities; to suppress insurrections; and to provide for innumerable other important exigencies, arising out of the intercourse and revolutions among nations.1
§ 1557. The power to adjourn congress in cases of disagreement is equally indispensable; since it is the only peaceable way of terminating a controversy, which can lead to nothing but distraction in the public councils.2
§ 1558. On the other hand, the duty imposed upon him to take care, that the laws be faithfully executed, follows out the strong injunctions of his oath of office, that he will “preserve, protect, and defend the constitution.” The great object of the executive department is to accomplish this purpose; and without it, be the form of government whatever it may, it will be utterly worthless for offence, or defence; for the redress of grievances, or the protection of rights; for the happiness, or good order, or safety of the people.
Power to Receive Ambassadors and Other Public Ministers
§ 1559. The next power is to receive ambassadors and other public ministers. This has been already incidentally touched. A similar power existed under the confederation; but it was confined to receiving “ambassadors,” which word, in a strict sense, (as has been already started,) comprehends the highest grade only of ministers, and not those of an inferior character. The policy of the United States would ordinarily prefer the employment of the inferior grades; and therefore the description is properly enlarged, so as to include all classes of ministers. Why the receiving of consuls was not also expressly mentioned, as the appointment of them is in the preceding clause, is not easily to be accounted for, especially as the defect of the confederation on this head was fully understood.1 The power, however, may be fairly inferred from other parts of the constitution; and indeed seems a general incident to the executive authority. It has constantly been exercised without objection; and foreign consuls have never beer allowed to discharge any functions of office, until they have received the exequatur of the president. Consuls, indeed, are not diplomatic functionaries, or political representatives of a foreign nation; but are treated in the character of mere commercial agents.3
§ 1560. The power to receive ambassadors and ministers is always an important, and sometimes a very delicate function; since it constitutes the only accredited medium, through which negotiations and friendly relations are ordinarily carried on with foreign powers. A government may in its discretion lawfully refuse to receive an ambassador, or other minister, without its affording any just cause of war. But it would generally be deemed an unfriendly act, and might provoke hostilities, unless accompanied by conciliatory explanations. A refusal is sometimes made on the ground of the bad character of the minister, or his former offensive conduct, or of the special subject of the embassy not being proper, or convenient for discussion. This, however, is rarely done. But a much more delicate occasion is, when a civil war breaks-out in a nation, and two nations are formed, or two parties in the same nation, each claiming the sovereignty of the whole, and the contest remains as yet undecided, flagrante bello. In such a case a neutral nation may very properly withhold its recognition of the. supremacy of either party, or of the existence of two independent nations; and on that account refuse to receive an ambassador from either.1 It is obvious, that in such cases the simple acknowledgment of the minister of either party, or nation, might be deemed taking part against the other; and thus as affording a strong countenance, or opposition, to rebellion and civil dismemberment. On this account, nations, placed in such a predicament, have not hesitated sometimes to declare war against neutrals, as interposing in the war; and have made them the victims of their vengeance, when they have been anxious to assume a neutral position. The exercise of this prerogative of acknowledging new nations, or ministers, is, therefore, under such circumstances, an executive function of great delicacy, which requires the utmost caution and deliberation. If the executive receives an ambassador, or other minister, as the representative of a new nation, or of a party in a civil war in an old nation, it is an acknowledgment of the sovereign authority de facto of such new nation, or party. If such recognition is made, it is conclusive upon the nation, unless indeed it can be reversed by an act of congress repudiating it. If, on the other hand, such recognition has been refused by the executive, it is said, that congress may, notwithstanding, solemnly acknowledge the sovereignty of the nation, or party.1 These, however, are propositions, which have hitherto remained, as abstract statements, under the constitution; and, therefore, can be propounded, not as absolutely true, but as still open to discussion, if they should ever arise in the course of our foreign diplomacy. The constitution has expressly invested the executive with power to receive ambassadors, and other ministers. It has not expressly invested congress with the power, either to repudiate, or acknowledge them.2 At all events, in the case of a revolution, or dismemberment of a nation, the judiciary cannot take notice of any new government, or sovereignty, until it has been duly recognised by some other department of the government, to whom the power is constitutionally confided.
§ 1561. That a power, so extensive in its reach over our foreign relations, could not be properly conferred on any other, than the executive department, will admit of little doubt. That it should be exclusively confided to that department, without any participation of the senate in the functions, (that body being conjointly entrusted with the treaty-making power,) is not so obvious. Probably the circumstance, that in all foreign governments1 the power was exclusively confided to the executive department, and the utter impracticability of keeping the senate constantly in session, and the suddenness of the emergencies, which might require the action of the government, conduced to the establishment of the authority in its present form.2 It is not, indeed, a power likely to be abused; though it is pregnant with consequences, often involving the question of peace and war. And, in our own short experience, the revolutions in France, and the revolutions in South America, have already placed us in situations, to feel its critical character, and the necessity of having, at the head of the government, an executive of sober judgment, enlightened views, and firm and exalted patriotism.
§ 1562. As incidents to the power to receive ambassadors and foreign ministers, the president is understood to possess the power to refuse them, and to dismiss those who, having been received, become obnoxious to censure, or unfit to be allowed the privilege, by their improper conduct, or by political events.4 While, however, they are permitted to remain, as public functionaries, they are entitled to all the immunities and rights, which the law of nations has provided at once for their dignity, their independence, and their inviolability.