It is also a well-established principle that no construction of the clause in the Bill of Rights (in any constitution) providing compensation for property taken for a public use shall so extend the benefits of the clause as to give indirect or consequential damages to a person when the public already has a rightful use of the property.[217]
83. Though the right of eminent domain and its exercise are not enumerated in the Constitution, the power being inseparable from sovereignty and the right being the offspring of political necessity, must be recognized as existing. The right is one of these which is not denied, and being essential, is implied. Were the right to acquire property, and for other purposes, denied the United States, the unwillingness of property-holders to sell, or legislation by a State prohibiting a sale to the federal government would make nugatory the government itself, and its existence would thus depend upon the will of a State, or even upon that of a private citizen.[218] The essential matter here is of sovereignty, or jurisdiction. The two sovereignties, the several States and the United States, possess, each, this right commensurable with their respective jurisdictions.
The proper view of the right of eminent domain seems to be, that it is a right belonging to a sovereignty to take private property for its own public uses, and not alone for those of another. Beyond that, there exists no necessity; which alone is the foundation of the right. If the United States have the power, it must be complete in itself. It can neither be enlarged nor diminished by a State.[219]
CHAPTER VII
THE LAW OF THE EXECUTIVE POWER
84. The executive power of the United States is vested in a President. The executive is single,—that is, one person. He possesses all the executive powers which the sovereign,—the people of the United States, have conferred. His power is derivative, not original. His power is not defined by the Constitution, that is, it is not fully set forth by limitations. It is limited in two particulars: he cannot grant reprieves or pardons in cases of impeachment, and he solemnly swears or affirms faithfully to execute the office of President of the United States. This solemn obligation implies that he himself is not the sole or the final judge of his fidelity in executing his office. This responsibility of the President to a superior, in certain cases, is clearly stated by the Constitution itself: first, that the House of Representatives shall have the sole power of impeachment, and secondly, that the Senate shall have the sole power to try all impeachments, and when sitting for that purpose, its members shall be on oath or affirmation. When the President is tried, the Chief Justice of the United States shall preside, and no person shall be convicted without the concurrence of two thirds of the members present.[220]
85. Whether or not the President has performed the duties of his office is a political question and may alone be determined by impeachment and conviction. President Johnson was impeached but not convicted,—whence the conclusion that he faithfully executed the office of President. The term “office” is not used in the Constitution as descriptive of the exercise of legislative power by either House or by its respective members. Senators and Representatives receive a compensation for their “services.” No person holding any “office” under the United States can be a member of either House during his continuance in “office.”[221] But the Constitution does not apply the term “office” to the two-year term of a Representative, or to the six-year term of a Senator, or to the duties, rights, privileges, qualifications, or powers of either. We shall see that the term is applied to judges of the United States.
86. The executive power of the United States is vested in a President, and the faithful exercise of that delegated power is the faithful execution of the office of President. From the nature of the power it cannot be defined. The office was created by the people of the United States at the close of the eighteenth century, when distrust of the executive (the crown) was dominant in the American mind. The trend then was to enthrone the legislative and to dethrone the executive. It is remarkable that the supreme law of the land, made at that time, should vest such vast powers in the executive. He is commander-in-chief of the army and navy and of the State militia when in the actual service of the United States[222] but Congress alone can declare war.[223] He participates in legislation, and possesses the veto power (which constitutionally comprises that participation)[224] but unlike the governor, under some later constitutions, he cannot veto a particular item in an appropriation bill.[225]
He makes treaties, provided two thirds of the Senators present concur,[226] and the control of our foreign relations is in his hands.[227] Thus, though not possessing the war power by the verbal provisions of the Constitution, he may by his policy, involve the United States in war. He possesses the appointing power, thus determining who shall fill judicial and administrative offices, under the Constitution,[228] a power, the exercise of which practically determines the character of the federal government. In brief, excepting members of the Senate and of the House, all now elected directly by the people and who, at present, comprise, numerically, about one one thousandth part of the aggregate public servants in the government of the United States, the President,—that is, the executive power of the United States delegated to the President, appoints the vast body of officials in the national service. Most of these officials have ministerial duties; a few have judicial. Strictly speaking, the President is the only executive officer provided for by the Constitution.
87. In the “Executive Department” (an expression known to the Constitution[229]), it is the President alone who makes the appointments. “The principal officer in each of the executive departments” is known to us as a member of the Cabinet, and is an appointee of the President. The office of a member of the Cabinet affords an illustration of that rare tenure, a tenant at will. This tenure is stated by Lincoln in a memorandum read to his Cabinet: “I must myself be the judge how long to retain and when to remove any of you from his position.”[230]