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none, or in case of his removal, death, resignation, or inability, then the Secretary of War, or if there be none, or in case of his removal, death, resignation, or inability, then the Attorney-General, or if there be none, or in case of his removal, death, resignation, or inability, then the Postmaster-General, or if there be none, or in case of his removal, death, resignation, or inability, then the Secretary of the Navy, or if there be none, or in case of his removal, death, resignation, or inability, then the Secretary of the Interior, shall act as President until the disability of the President or Vice-President is removed or a President shall be elected: Provided, That whenever the powers and duties of the office of President of the United States shall devolve upon any of the persons named herein, if Congress be not then in session, or if it would not meet in accordance with law within twenty days thereafter, it shall be the duty of the person upon whom said powers and duties shall devolve to issue a proclamation convening Congress in extraordinary session, giving twenty days' notice of the time of meeting. Sec. 1, act of Jan. 19, 1886 (24 Stat. 1).

5. Restrictions on succession of cabinet officers.-That the preceding section shall only be held to describe and apply to such officers as shall have been appointed by the advice and consent of the Senate to the offices therein named, and such as, are eligible to the office of President under the Constitution, and not under impeachment by the House of Representatives of the United States at the time the powers and duties of the office shall devolve upon them respectively. Sec. 2, act of Jan. 19, 1886 (24 Stat. 2).

6. Commander in Chief.-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; * * Art. II, sec. 2, Constitution of the United States.

Notes on Decisions.

Powers and duties in general.-The PresiIdent of the United States, as Commander in Chief of its armies, has authority to employ secret agents to enter the lines of the enemy and obtain information respecting its strength, resources, and movements, and contracts to compensate such agents are so far binding upon the Government as to render it lawful for the President to direct payment out of the contingent fund under his control. Totten v. U. S. (1875), 92 U. S. 105, 23 L. Ed. 605, affirming (1873) 9 Ct. Cls. 506.

The object of this provision is to vest in the President the supreme command over all the military forces, such supreme and undivided command as would be necessary to the prosecution of a successful war. U. S. v. Sweeny (1895), 15 Sup. Ct. 608, 609, 157 U. S. 281, 39 L. Ed. 702.

The President, in regulating the execution of the selective service act (40 Stat. 76), is not exercising legislative power. U. S. v. Olson (D. C. 1917), 253 Fed. 233. The President, as Commander in Chief of the Army and Navy, held to have authority to arrest and remove to Washington a citizen of a State who, there is probable cause to believe, was implicated in the assassination of President Lincoln, and the officers

making the arrest are not liable for false imprisonment. Lamar v. Dana (C. C. 1873), Fed. Cas. No. 8006.

The President, as Commander in Chief of the Army, is limited in the discharge of his duty by statutes enacted by Congress which do not impair his efficiency as Commander in Chief. McBlair v. U. S. (1184), 19 Ct. Cls. 528.

As Commander in Chief he is authorized to direct the movements of the land and naval forces placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy. He may invade the hostile country and subject it to the sovereignty and authority of the United States. But his conquests do not enlarge the boundaries of this Union, nor extend the operations of our institutions and laws beyond the limits before assigned to them by the legislative power. Fleming v. Page, 9 How. 603, 615.

The power of command and control reserved by the Crown was placed by the Constitution in the hands of the President. Street v. U. S. (1889), 24 Ct. Cls. 230; (1890) 25 id. 515, 113 U. S. 299. See also chapter 44, entitled " Employment of military forces."

The power of the President as Commander in Chief of the Army to appoint officers is subject to the consent of the Senate. Id.

The authority of the President as Commander in Chief to determine whether an officer incapacitated for service be placed on the retired list or wholly retired is wholly dependent upon the acts of Congress. Id.

The power of the President as Commander in Chief of the Army and Navy and the authority of Congress to make rules for the government and regulation of the land and naval forces are distinct, and the President can not by military orders evade the legislative regulations and Congress by rules and regulations can not impair the authority of the President as Commander in Chief. Swaim v. U. S. (1893), 28 Ct. Cls. 173.

The President is Commander in Chief of the Army and Navy of the United States at all times, and of the militia of the several States only when called into the actual service of the United States. Alabama Great Southern R. Co. v. U. S. (1914), 49 Ct. Cls. 522, 533, citing Johnson v. Sayre (1895), 158 U. S. 109, 115, 15 Sup. Ct. 773, 39 L. Ed. 914.

As Commander in Chief, the President can modify, suspend, or rescind an order issued to the Marine Corps. (1820) 1 Op. Atty. Gen. 380.

The President having, as Commander in Chief, satisfied himself that an exchange of Artillery and Marine Corps is consistent with the good of the service, and that the officers to be transferred have, respectively, assented to it, will then take care not to prejudice the rank of any officer of the regiment to which the transfer is made by nominating the officers transferred to take the same rank In that regiment which was held by the officers whom he substitutes. (1830) 2 Op. Atty. Gen, 355.

As Commander in Chief it is the right of the President to decide, according to his own judgment, what officer shall perform any particular duty, and as supreme executive magistrate he has power of appointment. (1860) 9 Op. Atty. Gen. 463.

Regimental officers of such regiments as may be formed by contributions of companies from two or more States are to be appointed by the President of the United States, under the constitutional provisions which make him the Commander in Chief of the Army and Navy and which authorize him to appoint all officers of the United States whose appointment is not otherwise provided for by law. (1898) 22 Op. Atty. Gen. 135.

Assumption or impairment of authority by Congress. The power of the President to

command the Army and Navy and of Congress to make rules for the Government and regulation of the land and naval forces are distinct; the President can not by military orders evade the legislative regulations; Congress can not by rules and regulations impair the authority of the President as Commander in Chief. Swaim

v. U. S. (1893), 28 Ct. Cls. 173.

If Congress should attempt, by a provision in a statute, to make a military officer independent of the President, he might execute the law in disregard of such unconstitutional provision. (1860) 9 Op. Atty. Gen. 463.

Secretary of War as organ of Executive.The power of the President to establish rules and regulations for the government of the Army being undoubted, it necessarily implies the power to modify, repeal, or create anew, and the rules and orders promulgated by the Secretary of War as the representative of the President must be regarded as the acts of the Executive. U. S. v. Eliason (1842), 16 Pet. 291, 10 L. Ed. 968.

Rules and orders promulgated by the Secretary of War for the government of the Army are presumed to be issued by the Secretary with the approbation and under the direction of the President as Commander in Chief, though they do not expressly so state. In re Brodie (1904), 128 Fed. 665, 63 C. C. A. 419.

The President has no power without an act of Congress to establish a separate bureau in the War Department to supervise and control the State militia. (1861) 10 Op. Atty. Gen. 11.

The President may remit a part of a court-martial sentence, but after confirming such sentence the proceedings are no longer subject to his review; his act in approving the sentence or in remitting a part thereof does not require his manual signature, but it is sufficient that his approval be signified through and attested by the Secretary of War in a statement signed by the latter. (1877) 15 Op. Atty. Gen,

290.

The Secretary of War is the regular constitutional organ of the President for the administration of the Military Establish. ment of the Nation, and as such the rules and orders publicly promulgated through him must be received as acts of the Executive, and are binding upon all within the sphere of his legal and constitutional authority. (1898) 22 Op. Atty. Gen. 54.

Calling militia into service.--The President alone is made the judge of the necessity of calling the militia into the service of the United States, and he acts on his responsibility under the Constitution. Martin v. Mott (1827), 25 U. S. (12 Wheat.)

19, 6 L. Ed. 537; Vanderheyden v. Young (N. Y. 1814), 11 Johns. 150.

Congress may "provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions" (Const. Art. I, sec. 8), and the authority to call forth the militia has been exclusively vested in the President. Alabama Great Southern R. Co. v. U. S. (1914), 49 Ct. Cl. 522.

The Federal Constitution clearly distinguishes between the Army and Navy on the one hand and the militia upon the other. The latter may be called forth by the President for specific purposes, and when so called forth and assembled comes under the control of and into the service of the United States.

Id.

The President, as Commander in Chief of the Army and Navy and of the militia, when in actual service of the United States, has authority to require the Quartermaster's Department of the United States Army to make disbursements on account of militia in the United States service. (1835) 2 Op. Atty. Gen. 711.

The President has power to call out the military in aid of the civil authorities of the District of Columbia. U. S. v. Stewart (Crim. Ct. D. C. 1857), Fed. Cas. No. 16,401a.

The power of the President under the Federal Constitution to call the whole militia of any part of the Union into service in case of invasion may be exercised by his delegate, 1. e., a general commanding in chief in a particular district; and all citizens subject to militia duty may thereby be placed under military law; but this is the extent of martial law, and all beyond is usurpation. Johnson v. Duncan (La. 1815) 3 Mart. (O. S.) 530, 6 Am. Dec. 675.

Army regulations.-Army regulations derive their force from the power of the President as Commander in Chief, and are binding upon all within the sphere of his legal and constitutional authority, but such regulations do not confer authority on a peace officer or a private citizen without order or direction of a military officer to arrest or detain a deserter from the Army. Kurtz v. Moffitt (1885), 115 U. S. 503, 6 Sup. Ct. 148, 29 L. Ed. 458.

Declaration of martial law. Neither the President, as Commander in Chief, nor Congress, nor the judiciary, can disturb any one of the safeguards of civil liberty incorporated into the Constitution, except so far as the right in certain cases to suspend the privilege of the writ of habeas corpus. Ex parte Milligan (1866), 4 Wall. 2, 127, 18 L. Ed. 281.

In time of insurrection the President has power to arrest and hold in custody persons known to have criminal intercourse

with the insurgents or persons against whom there is probable cause for suspicion of criminal complicity, and may refuse to obey any writ of habeas corpus requiring him to show cause for such arrest. (1861) 10 Op. Atty. Gen. 74.

The President of the United States has a right to govern, through his military officers, by martial law, when and where the civil power is suspended by force; in all other times and places the civil excludes martial law, excludes government by the war power. Griffin v. Wilcox (1863), 21 Ind. 370.

The President of the United States, whether in his civil capacity or as Commander in Chief of the Army and Navy, has no power during an insurrection to arrest or authorize another to arrest any person not subject to military law without any order or process of some court of competent jurisdiction. Jones v. Seward (N. Y. 1863), 40 Barb. 563.

The President, as Commander in Chief, is entrusted with the duty of carrying on war and is clothed with authority himself or through his generals to declare martial law over rebellious States or over districts in a state of war, and within those limits subject all persons and things to its operation, but he can not subject to martial law a State not in rebellion and far removed from the scene of conflict. In re Kemp (1863), 16 Wis. 359, 376.

Appointment of courts-martial and review of proceedings.-The action of the President in twice returning the proceedings of the court-martial urging a more severe sentence held authorized by law and a sentence thereafter, and in consequence thereof, was valid. Swaim v. U. S. (1897), 165 U. S. 558, 17 Sup. Ct. 448, 41 L. Ed. 823, affirming (1893), 28 Ct. Cl. 173.

In detailing officers to compose a courtmartial, the presumption is that the President acts pursuant to law, and its sentence can not be collaterally attacked by going into an inquiry whether the trial by officers inferior in rank to accused was or was not avoidable. Id.

The President, as Commander in Chief, has authority to convene a general courtmartial even when the commander of the accused officer is not the accuser. Id.

The President, as Commander in Chief of the Army, has a right, virtute officii, to appoint a general court-martial. Runkle v. U. S. (1884), 19 Ct. Cl. 396.

The President, as Commander in Chief of the Army charged with the duty of reviewing court-martial proceedings, may ap prove, disapprove, or mitigate the sentence, but can not order a new sentence of a more severe character. Swaim v. U. S. (1893), 28 Ct. Cl. 173.

The President has power to appoint courts-martial. Id.

An officer who is authorized to order a general court-martial has no power under the former A. W. 112 (now A. W. 50) to pardon or mitigate the judgment after confirmation by him of the sentence. (1888) 19 Op. Atty. Gen. 106.

Interdiction or permission of commerce.There is no doubt that, with the concur rent authority of Congress, the President may permit commercial intercourse with a public enemy. Hamilton v. Dillin (1874),

21 Wall. 73, 87, 22 L. Ed. 528.

Blockades and capture of hostile property. Powers of President in establishing blockades, and directing capture of hostile property. The Sarah Starr (D. C. 1861), Fed. Cas. No. 12,352; U. S. v. The Tropic Wind (C. C. 1861), Fed. Cas. No.16,541a; The Amy Warwick (D. C. 1862), Fed. Cas. No. 341.

The President may lawfully proclaim a blockade of any of the ports of the United States when in his judgment the exigency for such action has arisen, though Congress alone has power, under the Constitution, to declare war and grant letters of marque. U. S. v. The Tropic Wind (1861), 6 App. D. C. 351.

Government of ceded and conquered territory in general. The duties of the President, as Commander in Chief of the Army and Navy, are purely military, and be may do all necessary things to conquer and subdue the enemy, may invade the hostile country and subject it to the sovereignty and authority of the United States, but his conquests do not enlarge the boundaries of the Union nor extend the operation of our laws beyond the limits assigned by the legislative power. Fleming v. Page (1850), 9 How. 603, 615, 13 L. Ed. 276; Castillero v. U. S. (1862), 2 Black 18, 358, 17 L. Ed. 360.

The authority of the President over the Mexican port of Tampico after its conquest by United States forces did not constitute that port a part of the United States subject to the privileges of our revenue laws. Fleming v. Page (1850), 9 How. 603, 618, 13 L. Ed. 276.

The President, as Commander in Chief of the Army and Navy, having authorized the military and naval commanders in California to exercise the belligerent rights of a conqueror and to form a civil and military government with power to impose duties on imports and tonnage for the support of such government and of the Army, such duties and imposts were legally demanded and lawfully collected during the continuance of the war with Mexico and thereafter until the revenue system of the United States was put into operation in California

under the acts of Congress passed for that purpose. Cross v. Harrison (1853), 16 How. 164, 14 L. Ed. 889.

The executive authority of the Government extends over territory acquired by conquest. Leitensdorfer v. Webb (1857), 20 How. 176, 15 L. Ed. 891.

The authority of the President as Commander in Chief of the Army and Navy and the authority of Congress extends to all territories wherever the Army and Navy may go. Ex parte Milligan (1866), 4 Wall. 2, 18 L. Ed. 281.

The appointment by the President of a military governor for a State participating in the rebellion did not change the general laws then in force for the settlement of the estates of deceased persons, nor did it remove from office those who were at the time charged by law with public duties in that behalf. Ketchum v. Buckley (1878), 99 U. S. 188, 25 L. Ed. 473.

The President, as Commander in Chief of the Army, had authority to legally exact duties upon imports from the United States to Porto Rico, and duties so collected by the military commander were legally exacted under the war power. Dooley v. U. S. (1901), 182 U. S. 234, 21 Sup. Ct. 762, 45 L. Ed. 1074.

The military power under the control of the President as Commander in Chief includes the power to govern ceded and conquered territory until Congress acts, and this power continues notwithstanding the inaction of Congress. Santiago v. Nogueras (1909), 29 Sup. Ct. 608, 609, 214 U. S. 260, 53 L. Ed. 989.

The right of the President as Commander in Chief of the Army and Navy to exercise government and control over Porto Rico did not cease upon the conclusion of peace with Spain until congressional legislation had been enacted. (1899) 22 Op. Atty. Gen. 560.

The President, by virtue of his constitutional authority as Commander in Chief of the Army and Navy, has adequate power to use and make disposition of property in Cuba formerly belonging to the Crown of Spain, or subject to the imperial prerogative, and this includes the right to dispose of mining or other property formerly belonging to the Spanish Crown. (1900) 23 Op. Atty. Gen. 222.

If he desires to do so, the President can authorize the military governor of Cuba to make grants of mining rights, but whether such power should be exercised is a question involving important and delicate considerations. Id.

The power of the President as Commander in Chief of the Army and Navy includes the authority during civil war or rebellion to establish a military government in

any State engaged in civil war or rebellion and to appoint judicial tribunals to enforce the laws. Scott v. Billgerry (1866), 40 Miss. 119, 133.

The appointment of the military governor of Tennessee, by the President, in 1862, was an exercise of constitutional power, and clothed such governor with all the powers, duties, and functions pertaining to the office, including the power to establish offices and tribunals. Rutledge v. Fogg (1866), 43 Tenn. (3 Cold.) 554, 91 Am. Dec. 299.

Establishment of military commissions and provisional or prize courts and powers thereof. The President of the United States has no authority to establish a prize court in a conquered country; and any sentence of condemnation passed by a court so established is a nullity. Jecker r. Montgomery (1851), 54 U. S. (13 Ilow.) 498, 14 L. Ed. 240.

When, during the Civil War, portions of insurgent territory were occupied by national forces, it was within the constitutional authority of the President, as Commander in Chief, to establish the provisional courts therein. The Grapeshot (1869), 9 Wall. 129, 131, 19 L. Ed. 651.

The establishment by the President of the provisional court of Louisiana in 1862 was a rightful exercise of the constitutional authority of the President during a state of war. Burke v. Miltenberger (1873), 19 Wall. 519, 525, 22 L. Ed. 158.

As Commander in Chief of the Army, the President was authorized to establish civil courts in insurgent territory occupied by the national forces during the War of the Rebellion. Mechanics' & Traders' Bank v. Union Bank (1874), 22 Wall. 276, 295, 22 L. Ed. 871.

The establishment of the provisional court of New Orleans by proclamation of President Lincoln during the rebellion while New Orleans was occupied by Federal troops held valid. Lewis v. Cocks (1874), 23 Wall. 466, 23 L. Ed. 70.

The creation of the provisional court for Porto Rico between Apr. 11, 1899, when ratifications of the treaty by which it was ceded were exchanged, and May 1, 1900, when act of Apr. 12, 1900 (31 Stat. 77), establishing a civil government, took effect, was within scope of the military power, acting by authority of the President as Commander in Chief, though peace then prevailed, and courts established under Spain were open. Santiago v. Nogueras (1909), 29 Sup. Ct. 608, 609, 214 U. S. 260, 53 L. Ed. 989.

Military commissions and their acts in the trial of persons not in the military service, during the Civil War, in States where the courts were undisturbed, were unconstitutional. Milligan v. Hovey (C. C. 1871), Fed. Cas. No. 9,605.

After the Rebellion had ceased, and the authority of the United States was acknowledged in a State, there is no jurisdiction to try offenses by citizens against soldiers by military commission. U. S. v. Commandant of Fort Delaware (D. C. 1866), Fed. Cas. No. 14,842.

The establishment of the provisional court for Louisiana by the President, as Commander in Chief of the forces of the United States, while they held the terri tory in which it was to exercise its functions, was an act warranted by the law of nations. U. S. v. Reiter (La. 1865), Fed. Cas. No. 16,146.

Such court continued rightfully to exercise its functions so long as its commission remained unrevoked, and the power of the United States continued to support it in the exercise of them. Id.

When the military authorities of the United States had captured and taken possession of any one of the insurgent States the President of the United States, being Commander in Chief, could constitute and cause to be established a judicial tribunal, and vest such tribunal with all the necessary authority for the administration of justice in said State under the Constitution and laws. Burke v. Tregre (1870), 22 La. Ann. 629.

When the United States captured the city of New Orleans in 1862 the civil government existing under the Confederacy ceased to have authority. As an incident of war powers the President had the right to establish civil government, to create courts to protect the lives and property of the people. Mechanics' & Traders' Bank v. Union Bank (1873), 25 La. Ann. 387. But the President, representing the United States in the exercise of its sovereign powers, could not create a court to decide any civil controversy. This could only be done by Congress under the limitations of the Constitution. Id.

The President of the United States, as Commander in Chief and the officer in command of the forces of the United States in any district of war operations or conquered territory, may establish legal tribunals for the adjudication and protection of civil rights. Hefferman v. Porter (Tenn. 1869), 6 Cold. 391, 98 Am. Dec. 459.

7. Advice of cabinet officers.-The President ** * *** he may require the Opinion, in writing, of the principal Officer in each of the executive Depart

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