Article 2, Section 3
[Volume 4, Page 128]
William Rawle, A View of the Constitution of the United States 34--35, 147--50, 171--73 1829 (2d ed.)
The legislative body possesses with us a great advantage over that of those countries where it may be adjourned or dissolved at the pleasure of the executive authority. It is self-moving and self-dependent. Although it may be convened by the executive, it cannot be adjourned or dissolved by it. The time of its assembling is fixed by the Constitution, until which, unless a law has been passed appointing an earlier day, or the president on extraordinary occasions has thought proper to convene it, the action of the legislature cannot commence; but if in their opinion the public good shall require it, they may continue uninterruptedly in session, until the termination of the period for which the members of the house of representatives are elected, and they may fix as early a time for the meeting of the next congress as they think proper. A similar principle prevails in all the state constitutions, and it is only where it exists, that a legislature is truly independent. It is as inconsistent with sound principles for the executive to suspend, at its pleasure, the action of the legislature, as for the latter to undertake to deprive the executive of its constitutional functions.
But without a constitutional limit on its duration, it must be conceded, that a power in the legislature to protract its own continuance, would be dangerous. Blackstone attributes the misfortunes of Charles I. to his having unadvisedly passed an act to continue the parliament, then in being, till such time as it should please to dissolve itself, and this is one of the many proofs that the much praised constitution of that country wants the character of certainty. No act of congress could prolong the continuance of the legislature beyond the term fixed by the Constitution.
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In the formation of a republic there is perhaps no part more difficult than the right constitution of the executive authority. The three qualities of promptness, vigour, and responsibility, ought to be combined in it. In the two other branches, more deliberation is necessary. Whether to make laws or to expound them, the motions should, in general, be slow and cautious. The acts of either, when constitutionally consummate, are obligatory on those whose duty it is to enforce them. The office of executing a law, excludes the right to judge of it, and of course does not require that the executive power should concur in opinion on its utility. When the meaning and intention of the legislature are ascertained, and the law itself is constitutional, delay in the execution of it is culpable. The public, which may blame the legislator, requires of the executive officer to carry it into effect, because to subvert the order of government, is one of the greatest evils that can befal it. Every individual is bound to obey the law, however objectionable it may appear to him: the executive power is bound not only to obey, but to execute it. To hesitate, to delay, perhaps to lose the proper moment of action, would approach to entire disobedience. A prompt submission to the law, and an immediate preparation to enforce it, are therefore absolutely necessary in relation to the authority from which the law has emanated. But we must also consider this quality in respect to its effect. The operation of a law, whenever the time of acting upon it has arrived, should be immediate and decisive. The law is a power of which the force and existence should never be unfelt or forgotten. Like the pillar which led the Israelites through the wilderness, it should always be in sight. The commonwealth in which its pre-eminence is not constantly present to the mind, is in danger. But the sensation of its continued presence, and uncontrollable power, will be greatly weakened, if time is suffered to elapse without necessity, after its action ought to take place.
On general political principles therefore, as delay is reprehensible, promptness is a duty, the non-performance of which may enable transgressors to escape. For this reason, it is both wise and humane that the execution of laws [Volume 4, Page 129] should be speedy; that is, that no unreasonable interval should be allowed between the violation of the law and the adoption of such measures are may be necessary to enforce it.
For this purpose the executive must also be endowed with sufficient energy. It has been justly said that a feeble executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must in practice, be a bad government. It is in fact only by the execution of the Constitution and the laws, that the true value of either is known. If they are left as dead letters, they confer no benefit, and avert no evil. Principles without practice are like the intentions of an individual without acts. An energy of action, duly proportioned to the exigencies that arise, must be seated in the executive power. The proportion of the power to the occasions that are expected to require its use, should be as exact as possible. If it falls short, the evils we have already adverted to will ensue; if it exceeds them, the liberty of the people is endangered. It is difficult to adopt general expressions exactly descriptive of the proper extent and limitation of this power. Perhaps those we find in the Constitution are as competent as any that could be applied. "The president shall take care that the laws shall be faithfully executed." The simplicity of the language accords with the general character of the instrument. It declares what is his duty, and it gives him no power beyond it. The Constitution, treaties, and acts of congress, are declared to be the supreme law of the land. He is bound to enforce them; if he attempts to carry his power further, he violates the Constitution.
But although an exact specification of the manner in which the executive power shall be exercised, is not, and could not be introduced into the Constitution, although it would be at once unnecessary and impossible to define all the modes in which it may be executed, yet the auxiliary means are not wholly omitted, and will be noticed after we have considered the composition of the executive.
In some republics, the fear of evil from a single head, has led to the creation of councils and other subdivisions of the executive power, and the consequent imbecility and distractions of those governments have probably contributed to lead most of the nations of Europe to the preference given to monarchies. It was falsely conceived that to vest the executive power in a single person, was inconsistent with the nature of a republic, or it was supposed that a republic so constituted could not long retain its freedom, against the ambitious views, and alarming domination of a single magistrate. But in America, neither the fervour of republican principles, nor the odium of monarchy, then in hostile array against us, overpowered the calm and deliberate exercise of a sound judgment in this respect, and in every state but one, the unity of the executive power was adopted as a principle. Pennsylvania alone, whose original constitution has since been altered by the people, created an executive council, formed of a member from each county, and we have heretofore noticed its feebleness and inefficiency on a distressing occasion.
The experience of nearly half a century in respect to these state governments; the experience of upwards of a third of a century in respect to the United States government, evince that under proper regulations no abuse of such powers is to be feared. Limited and restrained as the president is, creature of the people, and subject to the law, with all power to do right, he possesses none to do wrong; his general responsibility by being undivided, is complete, his liability to impeachment, by accusers, in whose appointment he has no share, before a court which he does not create, both emanating from the same source to which he owes his own existence; his term of office exactly limited, his official power entirely gone the moment that of his successor commences, or the moment when the senate shall pass on him a sentence of deprivation of office; his only safety consists in doing what is right; his speedy and certain destitution would follow a contrary conduct.
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It is the duty of the president from time to time to give congress information of the state of the union; but although this alone is expressly mentioned in the Constitution, his communications naturally embrace a wider scope than internal affairs. Under the expression, he is to receive ambassadors, the president is charged with all transactions between the United States and foreign nations, and he is, therefore, the regular channel through which the legislature becomes informed of the political situation of the United States in its foreign, as well as its domestic relations; yet it has been always understood that he is not required to communicate more than, in his apprehension, may be consistent with the public interests. Either house may at any time apply to him for information; and, in the regular course of government, can apply only to him, where the matter inquired of, is principally under his superintendence and direction, although they frequently exercise the right to call upon the chief officers of executive departments, on matters peculiarly appertaining to them, and in like manner occasionally refer to the attorney general of the United States on subjects appropriate to his office. The applications directly to the president, are generally accompanied with a qualification evincing a correct sense of the obligation on his part to avoid or suspend disclosures, by which the public interest, that both are bound to keep in view, might be affected.
Such disclosures the legislature in general expressly disclaims. In recurrence to our history, it must be obvious, that these official communications are chargeable with being rather more full and liberal than is common in other countries. In support of the practice it has been said, that in republics there ought to be few or no secrets; an illusory opinion, founded on ideal conceptions, and at variance with the useful practice of mankind. If all the transactions of a cabinet, whether in respect to internal or external business, were regularly exhibited to the public eye, its own operations would be impeded; the public mind be perplexed, and improper advantages would sometimes be taken. Foreign powers, pursuing as they invariably do, a different course themselves, would justly object to such proceeding.
The president is also required to recommend to their consideration such measures as he may deem expedient. This is [Volume 4, Page 130] an obligation not to be dispensed with. Exercising his office during the recess of the legislature, the members of which, when they return to the mass of citizens, are disengaged from the obligatory inspection of public affairs; supplied by his high functions with the best means of discovering the public exigencies, and promoting the public good, he would not be guiltless to his constituents if he failed to exhibit on the first opportunity, his own impressions of what it would be useful to do, with his information of what had been done. He will then have discharged his duty, and it will rest with the legislature to act according to their wisdom and discretion. These communications were formerly made in person at the opening of the session, and written messages were subsequently sent when necessary, but the whole is now done in writing. It was formerly the practice to return answers, which as a mere matter of ceremony is now disused. The course pursued at present is to refer the message to a committee, who commonly report an analysis of it, and the parts on which it appears necessary to act, are referred to other committees to prepare them for the deliberations of the whole.
Rawle, William. A View of the Constitution of the United States of America. 2d ed. Philadelphia, 1829. Reprint. New York: Da Capo Press, 1970.
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