as a check on the enactment of hasty, unwise, or improper laws. The provision which requires the executive to exercise his veto power within ten days, if at all, is a very important and substantial limitation upon this power. For if it were not for this clause, it would be within the power of the President to prevent or indefinitely suspend all legislation which might be personally or politically obnoxious to him, by mere inaction, without being compelled to disclose the ground of his opposition or come before congress and the country with any explanation of his views. And then, by way of a counter check, it is provided that congress shall not rob the executive of his right to exercise this power by terminating its session before the President can act. A further and very important check upon congress, in its relation to the executive in this respect, was rendered necessary by the consideration that the requirement that "every bill" should be sent to the President for his approval might easily be evaded by calling the particular measure an "order" or a "resolution." Hence it was thought good to provide that all orders, resolutions, and votes, to which the concurrence of both houses shall be necessary, save on a question of adjournment, shall take the same course and be subject to the same veto power as a bill.

Extensive as the veto power is, there is yet one particular in which, in the opinion of many publicists, it might profitably be extended. That is, a constitutional amendment might give to the President the authority to disapprove of any particular part or item of a bill which may appear to him to be objectionable. At present, the chief magistrate must act upon the "bill" as a whole. An appropriation bill or a revenue measure may consist of a great number of separable items, some of which, in the judgment of the executive, may be unconstitutional or inexpedient. Yet he must either approve or reject the entire act. He has no power to veto any individual item.

As to the grounds on which the President may exercise this power, the constitution prescribes no limitations. He is merely required to return the bill "with his objections." It is within the scope of his power, and it is probably one of the purposes for which it was given, that he should judge of the constitutionality of all proposed legislation. But he is not restricted to this ground of objection, in

He may also judge of its eco

considering a bill laid before him. nomic or political wisdom, its expediency, its policy, or its relation to other laws or to treaties. In fact, though the ground of his objection should be entirely arbitrary or capricious, or the result of personal feeling or prejudice, still the constitution does not forbid him to make it the basis of a veto. This would merely furnish a reason for the attempt to pass the bill without his approval.

In regard to matters of practice in the signing, approval, and returning of bills, the rules which govern the President and congress are similar to those which prevail in the case of a state governor dealing with bills laid before him for his approval or rejection, in connection with which subject the matter will be more fully discussed. At present it is only necessary to remark that while the President is required to evidence his approval of a bill by his signature thereto, there is no provision of the constitution, nor any just implication therefrom, which imposes upon him the duty of affixing a date to his signature.14

MILITARY POWERS OF PRESIDENT.

68. The constitution provides that 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.

It is very important, in this connection, to observe the distinction between the powers and functions of the President and those of congress, and their mutual relations. The subject is best discussed by eonsidering it first with reference to the prevalence of a state of peace, and then in relation to a war footing. In time of peace, the President has two sets of duties to discharge with reference to the army and navy. First, he is the commander in chief, and as such must exercise supreme and unhindered control. Secondly, he "shall take care that the laws be faithfully executed," and in pursuance of this duty he must give due effect to the acts of congress which concern the military and naval establishments. Congress has power to raise and support armies, to provide and maintain a navy, and to

14 Gardner v. Collector, 6 Wall. 499.

make rules for the government and regulation of the land and naval forces. Under these grants of authority it may clearly regulate the enlistment of soldiers and sailors, prescribe the number, rank, and pay of officers, provide for and regulate arms, ships, forts, arsenals, the organization of the land and naval forces, courts-martial, military offenses and their punishment, and the like. And all these laws and regulations the President is to carry into effect, not in his character as commander in chief, but as a part of his general executive duty, and with as great or as little choice of means and methods as congress may see fit to confide to him. But again, in virtue of his rank as the head of the forces, he has certain powers and duties with which congress cannot interfere. For instance, he may regulate the movements of the army and the stationing of them at various posts. So also he may direct the movements of the vessels of the navy, sending them wherever in his judgment it is expedient. Neither here nor in a state of war is there any necessary 15 conflict.1 The President has no power to declare war. That belongs exclusively to congress.16 But when war has been declared, or when it is recognized as actually

15 The constitutional power of the President to command the army and navy and that of congress to "make rules for the government and regulation of the land and naval forces" are distinct. The President cannot by military orders evade the legislative regulations, and congress cannot by rules and regulations impair the authority of the President as commander in chief. Swaim v. U. S., 28 Ct. Cl. 173. The President may dismiss an officer from the service of the army or navy. But by Rev. St. U. S. §§ 1229, 1624, it is provided that no officer of the army or navy, in time of peace, shall be dismissed from the service, except upon and in pursuance of the sentence of a court martial to that effect, or in commutation thereof. The President has power, by and with the advice and consent of the senate, to displace an officer in the army or navy by the appointment of another person in his place. Mullan v. U. S., 140 U. S. 240, 11 Sup. Ct. 788. But he has no power to revoke an order dismissing an officer from the service and restoring the discharged officer to his rank. Palen v. U. S., 19 Ct. Cl. 389. When the number of officers in a given rank or grade of the regular army is expressly fixed by law, it is not in the power of the President to make appointments in excess of the limits thus fixed. Montgomery v. U. S., 5 Ct. Cl. 93.

16 As the power to declare war is vested in congress exclusively, the President has no power to originate a war. But without any declaration of war, or before such declaration is made, he may recognize the actual existence of a state of war, and employ the army and navy against the enemy. The

existing, then his functions as commander in chief become of the highest importance, and his operations in that character are entirely beyond the control of the legislature. It is true that congress must still "raise and support" the army and "provide and maintain" the navy, and it is true that the power of furnishing or withholding the necessary means and supplies may give it an indirect influence on the conduct of the war. But the supreme command belongs to the President alone. In theory, he plans all campaigns, establishes all blockades and sieges, directs all marches, fights all battles.

Articles of War and Army Regulations.

The "articles of war" comprise a code of military law regulating the discipline and administration of the army and providing for the enforcement of the rules thereby established. These articles are enacted by congress and have the force and authority of statute law, being ordained in the exercise of the constitutional power of congress to "make rules for the government and regulation of the land and naval forces." The "army regulations" are a body of rules having relation to the details of military law and the order and discipline of the military establishment, subordinate to the articles of war and the applicable statutes of congress, but having the force of law within their own sphere and so far as they are not inconsistent with legislative enactments. These regulations are not made by congress, but by the secretary of war for the army, and the secretary of the navy for the naval forces, subject to the approval of the President, from whom they are supposed to emanate. The authority to make them is based either on an express grant of power from congress to the executive, or on the general powers of the President as commander in chief.

Calling Out the Militia.

By an early act of congress (February 28, 1795) it was provided that "in case of an insurrection in any state against the government

Prize Cases, 2 Black, 635. A declaration of war by congress does not imply an authority to the President to extend the limits of the United States by conquering the enemy's country. That is, he may take possession of the enemy's country, and hold it, as a means of prosecuting the war, but that does not make the conquered territory a part of the United States. It could be annexed to the United States only by the act of the legislative department. Fleming v. Page, 9 How. 603.

thereof, it shall be lawful for the President of the United States, on application of the legislature of such state, or of the executive (when the legislature cannot be convened) to call forth such number of the militia of any other state or states as may be applied for, as he may judge sufficient to suppress such insurrection." By this act, the power of deciding whether the exigency has arisen upon which the government of the United States is bound to interfere is given to the President. He is to act upon the application of the legislature or of the executive, and consequently he must determine what body of men constitutes the legislature, and who is the governor, before he can act. If there is an armed conflict, the President must of necessity decide which is the government, and which party is unlawfully arrayed against it, before he can perform the duty imposed upon him by the act.17

THE CABINET.

69. The President is assisted, in the discharge of his executive duties, by a cabinet or ministry consisting of the heads of the several executive departments.

70. These officers are styled collectively "the cabinet," and individually are known as

(a) The secretary of state.

(b) The secretary of the treasury.

(c) The secretary of the navy.

(d) The secretary of war.

(e) The attorney general.
(f) The postmaster general.

(g) The secretary of the interior.

(h) The secretary of agriculture.

71. The constitution provides that the President may require the opinion in writing of the principal officers in each of the executive departments, upon any subject relating to the duties of their respective offices.

72. The heads of departments are the agents of the President, through whom, in matters of administration, he

17 Luther v. Borden, 7 How. 1. And see Martin v. Mott, 12 Wheat. 19.