ganized in 1794, was not placed under the control of the President. The act gives in detail the duties of the Postmaster-General and there is no suggestion that in the exercise of these duties he is to be under other than congressional direction.

The constitutional power of Congress thus to assume direction. of administrative departments of the Government received the approval of the Supreme Court in Kendall v. United States. In that case the court say:

6

"The executive power is vested in a President, and as far as his powers are derived from the Constitution, he is beyond the reach of any other department, except in the mode prescribed by the Constitution through the impeaching power. But it by no means follows that every officer in every branch of that department is under the exclusive direction of the President. Such a principle, we apprehend, is not, and certainly cannot be claimed by the President. There are certain political duties imposed upon many officers in the executive department, the discharge of which is under the direction of the President. But it would be an alarming doctrine that Congress cannot impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the Constitution; and in such cases, the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the President. And this is emphatically the case where the duty enjoined is of a mere ministerial character."

The circuit court in this case had said: "The legislature may prescribe the duties of the office at the time of its creation, or from time to time as circumstances may require.

As

the head of an executive department, he (the Postmaster-General) is bound, when required by the President, to give his opinion in writing upon any subject relating to the duties of his office. The President in the execution of his duty to see that the laws be faithfully executed, is bound to see that the PostmasterGeneral discharges 'faithfully' the duties assigned to him by

612 Pet. 524; 9 L. ed. 1181.

7 United States v. Kendall, 5 Cr. C. C. 163.

law, but this does not authorize the President to direct him how he shall discharge them."

§ 674. Development of the Administrative Powers of the President.

Despite this obvious original intention to confine the duties of the President mainly to the political field, the President has in practice become the head of the federal administrative system.s This has been due to two causes. In the first place the President's power of removal from office, a power which he may exercise at will, has easily enabled him to obtain administrative action even when he has not had legal power directly to command it. This was clearly shown in the episode of the removal of the bank deposits by Jackson. In the second place, the practical necessities of efficient government have compelled Congress to place in the President's hand powers of administrative discretion, and have inclined the courts to uphold his orders whenever it has been possible to do so."

Even where the President has not the power to command, he has the constitutional right to "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." 10

Acting under his constitutional obligation to take care that the laws be faithfully executed, the President may take such steps as are necessary and the laws permit, to compel the proper performance of their respective duties by federal agents generally. This duty does not, however, make the President responsible for every act committed by a subordinate administrative official, nor, even where a duty is expressly laid upon him by the Constitution or by

8 Not only this, but he has become the chief of his political party. For an account of the forces and manner by and in which this has been brought about see Macy, Party Organization and Machinery in the United States; and Ford, Rise and Growth of American Politics.

9 See paper by Prof. James T. Young, "The Relation of the Executive to the Legislative Power" in Proceedings of the American Political Science Association, I, 47.

10 U. S. Const., Art. II, Sec. II, § 1.

statute, is it necessary, or humanly possible, for him, in every case, to perform the duty in person.1

11

§ 675. President Acts Through the Heads of Departments.

In general the courts have recognized that the President acts through the chiefs of the Departments and that their acts are, in the view of the law, his acts. In proper cases, also, the acts of subordinate officials will be considered as the acts of a departmental head, and thus of the President.

By a law of 1806 the President was authorized to exempt certain lands from sale. In Wilcox v. Jackson12 the court said with reference to a certain tract: "Now, although the immediate agent in requiring this reservation was the Secretary of War, yet we feel justified in presuming that it was done by the approbation and direction of the President. The President speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties. Both military posts and Indian affairs, including agencies, belong to the War Department. Hence we consider the act of the War Department in requiring this reservation to be made, as being in legal contemplation the act of the President; and, consequently, that the reservation thus made was, in legal contemplation, the act of the President; and, consequently, that the reservation thus made was, in legal effect, a reservation made by order of the President, within the terms of the act of Congress.

" 13

11 In Williams v. United States (1 How. 290; 11 L. ed. 135) the court say: "The President's duty in general requires his superintendence of the administration; yet this duty cannot require of him to become the administrative officer of every department and bureau, or to perform in person the numerous details incident to services which, nevertheless, he is, in a correct sense, by the Constitution and laws required and expected to perform. This cannot be, because if it were practicable, it would be to absorb the duties and responsibilities of the various departments of the Government in the personal action of the one chief executive officer. It cannot be, for the strongest reason, that it is impracticable- nay, impossible."

12 13 Pet. 498; 10 L. ed. 264.

13 In Jones v. United States (137 U. S. 202; 11 Sup. Ct. Rep. 80; 34 L. ed. 691) the court say:

"The power conferred on the President of the United States by section 1

§ 676. Except When His Personal Judgment is Demanded.

Where, however, from the nature of the case, or by express constitutional or statutory declaration, it is evident that the personal, individual judgment of the President is required to be exercised, the duty may not be transferred by the President to anyone else. Thus in Runkle v. United States 14 it is said: "As the sentence under consideration involved the dismissal of Runkle from the army, it could not become operative until approved by the President, after the whole proceedings had been laid before him. The important question is, therefore, whether that approval has been positively shown. There can be no doubt that the President, in the exercise of his executive powers under the Constitution, may act through the head of the appropriate executive department. The heads of the department, are his authorized assistants in the performance of his executive duties, and their official acts, promulgated in the regular course of business, are presumptively his acts. That has been many times decided by the court. Here, however, the action required of the President is judicial in its character, not administrative. As commander-inchief of the army, he has been made by law the person whose duty it is to review the proceedings of the courts martial in cases of this kind. This implies that he is himself to consider the proceedings laid before him, and decide personally whether they ought to be carried into effect. Such a power he cannot delegate. His of the Act of Congress of 1856, to determine that a guano island shall be considered as appertaining to the United States, being a strictly executive power, affecting foreign relations, and the manner in which his determination shall be made known not having been prescribed by statute, there can be no doubt that it may be declared through the Department of State, whose acts in this regard are in legal contemplation the acts of the President. Wolsey v. Chapman, 101 U. S. 755; 25 L. ed. 915; Runkle v. United States, 122 U. S. 543; 7 Sup. Ct. Rep. 1141; 30 L. ed. 1167."

In United States v. Eliason (16 Pet. 291; 10 L. ed. 968) the court say: The Secretary of War is the regular constitutional organ of the President for the administration of the military establishment of the nation, and rules and orders publicly promulgated through him must be received as the acts of the executive, and as such, be binding upon all within the sphere of his legal and constitutional authority."

14 122 U. S. 543; 7 Sup. Ct. Rep. 1141; 30 L. ed. 1167.

personal judgment is required as much so as if it would have been in passing upon the case, if he had been one of the members of the court martial itself. He may call others to his assistance in making his examination, and in informing himself what ought to be done, but his judgment when pronounced must be his own judgment and not that of another."

S677. Administrative Appeals.

The courts have laid down the general doctrine that where a power of supervision and direction is given to an administrative superior, this power may be exercised either by way of direct order, or by entertaining appeals from the acts of subordinates.

In Knight v. United States Land Association' the court, construing a law requiring that certain things be done under the direction of the Secretary of the Interior, quotes with approval the following from an opinion of the Secretary:

"The statutes in placing the whole business of the department under the supervision of the Secretary, invest him with authority to review, reverse, amend, annul, or affirm all proceedings in the department having for their ultimate object to secure the alienation of any portion of the public lands, or the adjustment of private claims to lands, with a just regard to the rights of the public and of private parties. Such supervision may be exercised by direct orders or by review on appeals. The mode in which the supervision shall be exercised in the absence of statutory direction may be prescribed by such rules and regulations as the Secretary may adopt. When proceedings affecting titles to lands are before the department the power of supervision may be exercised by the Secretary, whether these proceedings are called to his attention by formal notice or by appeal. It is sufficient that they are brought to his notice. The rules prescribed are designed to facilitate the department in the despatch of business, not to defeat the supervision of the Secretary. For example, if, when a patent is about to issue, the Secretary should discover a fatal defect in the proceedings, or that by reason of some newly ascer15 142 U. S. 161; 12 Sup. Ct. Rep. 258; 35 L. ed. 974.