thereby destroyed or impaired," and averred" that the Congress of the States cannot constitutionally expel her from the Union, and that any attempt which practically does so is a nullity." The petition then went on to declare: "The acts in question annihilate the State and its government, by assuming for Congress the power to control, modify, and even abolish its government-in short, to assert sovereign power over it and the utter destruction of the State must be the consequence of their execution. They also violate a well-known salutory principle in governments, the observance of which alone can preserve them, by making the civil power subordinate to the military power, and thus establish a military rule over the States enumerated in the act, and make a precedent by which the government of the United States may be converted into a military despotism, in which every man may be deprived of goods, lands, liberty, and life by the breath of a military commander, or the sentence of the military commission or tribunal, without the benefit of trial by jury, and without the observance of any of those requirements and guarantees by which the Constitution and laws so plainly protect and guard the rights of the citizen."

President Johnson had vetoed these acts on the ground of their unconstitutionality. It was charged by the bill that nevertheless he was about to execute these acts. In so doing he would necessarily be performing a purely ministerial act, since, it being known that he personally denied their constitutionality, it followed that in executing them he was simply obeying, without opportunity for discretion, the commands of Congress.

In support of the bill it was argued that the judicial power is extended by the Constitution to all cases in law and equity arising under the Constitution, that the President was a creation of the Constitution, and an agent for its enforcement.

In opposition to the bill it was argued that this was a suit against the President officially. "There is," it was asserted, "no allegation that the President is about to do anything of his own motion which as President he is not authorized to do. The alle

gation is that he is about to execute certain laws passed by Congress."

"It is not upon any peculiar immunity," said counsel, "that the individual has, who happens to be President, upon any idea that he cannot do wrong; upon any idea that there is any particular sanctity belonging to him as an individual, as in the case with one who has royal blood in his veins; but it is on account of the office that he holds that I say the President of the United States is above the process of any court, or the jurisdiction of any court, to bring him to account as President. There is only one court, or quasi-court that he can be called upon to answer to for any dereliction of duty, for doing anything that is contrary to law or failing to do anything which is according to law, and that is not this tribunal, but one that sits in another chamber of this Capitol. There he can be called and tried and punished, but not here while he is President, and after he has been dealt with in that chamber and stripped of the robes of office, and he no longer stands as the representative of the government, then, for any wrong he has done to any individual, for murder or any crime of any sort which he has committed as President, then and not till then can he be subjected to the jurisdiction of the courts. Then it is the individual they deal with, not the representative of the people."

The court, in a very brief opinion, refused to issue the writ, saying:

"The single point which requires consideration is this: can the President be restrained by injunction from carrying into effect an Act of Congress alleged to be unconstitutional?

"It is assumed by the counsel for the State of Mississippi, that the President, in the execution of the Reconstruction Acts, is required to perform a mere ministerial duty. In this assumption there is, we think, a confounding of the terms 'ministerial' and executive,' which are by no means equivalent in import."

After pointing out that the duties sought to be enjoined were executive and political, the court declare that " an attempt on the part of the Judicial Department of the Government to enforce the performance of such duties by the President might be justly

characterized, in the language of Chief Justice Marshall, as an absurd and excessive extravagance.'

"It has been suggested," the court continued, "that the bill contains a prayer that, if the relief sought cannot be had against Andrew Johnson, as President, it may be granted against Andrew Johnson as a citizen of Tennessee. But it is plain that relief as against the execution of an Act of Congress by Andrew Johnson, is relief against its execution by the President. A bill praying an injunction against the execution of an Act of Congress by the incumbent of the presidential office cannot be received, whether it describes him as President or as a citizen of a State. motion for leave to file the bill is, therefore, denied."

§ 765. Georgia v. Stanton.

46

The

The court having thus held that the President might not be restrained from executing the Reconstruction Acts an injunction was prayed to restrain the Secretary of War and other military officials from executing them. The court, however, again refused to issue the order, the whole matter being declared political, the dictum of Marshall in the Cherokee Nation v. Georgia17 being the authority chiefly relied upon.

§ 766. Head of Executive Department Acting for the President; When Amenable to Writ.

As was intimated in Marbury v. Madison, a chief of one of the executive departments, when acting under the direct orders of the President, with reference to a matter which has, by the Constitution, been placed within the discretionary or political control of the President, is not amenable to the authority of the courts; but that, when not so acting, he is, as to a purely ministerial matter, amenable to compulsory judicial process. This principle was well illustrated in the case of Kendall v. United States.4s This was

46 Georgia v. Stanton, 6 Wall. 50; 18 L. ed. 721.

a case in which a peremptory mandamus was prayed and awarded to the Postmaster-General commanding him to credit the petitioners with certain amounts which had been found due them from the United States by a decision of the Solicitor of the Treasury.

The court said: "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 presented 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. 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 case, the duty and responsibility grow out of and are subject to the control of 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. . . It was urged at the bar that the Postmaster-General was alone subject to the direction and control of the President, with respect to the execution of the duty imposed upon him by this law, and this right of the President is claimed as growing out of the obligation imposed upon him by the Constitution to take care that the laws be faithfully executed. This is a doctrine that cannot receive the sanction of this court. It would be vesting in the President a dispensing power which has no countenance for its support in any part of the Constitution, and is asserting a principle which, if carried out in its results, to all cases falling within it, would be clothing the President with a power entirely to control the legislation of Congress, and paralyze the administration of justice." 49

49 The same reason which has supported the immunity of the President from compulsory judicial process has, in several of the States of the Union, supported a similar immunity on the part of the Governor. The scope of this treatise will not permit, however, a discussion of this phase of the question. For a discussion of this subject see the University Law Review, III, 335; Mich. Law Review, III, 631; Columbia Law Review, VI, 453.

§ 767. Obligation of the President to Enforce Laws Believed by Him to be Unconstitutional.

That the President has the right to veto an act of Congress because he believes it to be an unconstitutional measure, even though he thus substitutes his judgment as to this for that of Congress, is beyond doubt. The objection which has some times been made that in so doing the President arrogates to himself a judicial function is without weight.

In placing a veto upon a congressional enactment, the President is exercising, not a judicial, but a legislative function. His veto is of the nature of a powerful vote, and his decision as to the way his vote is to be cast must be formed from his own views and opinions. The Constitution gives him the power and he has a right to use it; indeed, it is his duty to use it. He has the right to use his veto upon the ground of unconstitutionality even when a measure of similar character has received previous interpretation by the Supreme Court, and has been sustained. His constitutional right or even duty of thus using his veto power has not been impaired by the manner in which any previous act has been treated. In 1832 Jackson vetoed the bill providing for a recharter of the National Bank. This he did mainly on the ground of unconstitutionality, notwithstanding the fact that in the case of McCulloch v. Maryland this institution had been carefully examined by the Supreme Court and pronounced constitutional. In support of his action, Jackson, in his veto message, said: "The Congress, the Executive, and the Court, must each for itself be guided by its own opinion of the constitution. Each public officer who takes an oath to support the constitution, swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President, to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval, as it is of the Supreme Court when it may be brought before them for a judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President