The Essentials of American Constitutional Law

by Francis Newton Thorpe

88. The President cannot be enjoined from dismissing, or be mandamused to receive a person, from or into his Cabinet. Indeed, such is the nature of the office of President, he is not amenable to writs of the law. He cannot be compelled by law to approve or to disapprove a bill that has passed Congress; or to appoint or to refrain from appointing any person to any office within his jurisdiction. Nor can he be questioned in any court of law respecting his office, nor be made a witness in any controversy. His powers are adequate to the execution of his office. It may be said that this is essentially true of the legislative,—the Congress, and of the judiciary,—the Courts of the United States.

89. Thus the President has power to protect a federal judge from threatened personal attack.[231] He has power to receive ambassadors and other public ministers and representatives of other sovereignties, a power which implies his right to refuse to receive those sent, or to dismiss those sent, or to request their recall, or to discontinue relations with them. Nor can any person, or State, through any court of law, compel or forbid him to do either. In other words, the powers of the President of the United States are executive, not ministerial. This distinction applies to no appointee of the President, in any of the executive departments. Their office is ministerial and every ministerial office in the government of the United States is subject to inquiry through a court of law.[232]

Thus the executive power of the United States is not subject to the legislative power.[233] We have seen that it is not subject to the judicial power. Yet, if this be so, by what power can the President be impeached for not faithfully executing his office?

90. The restraint of impeachment is not legislation nor the exercise of legislative powers vested in Congress. Impeachment is the accusation made by the House of Representatives that the President has not faithfully executed his office. Conviction is the adverse judgment of the Court of Impeachment,—the Senate sitting under special oath for a special purpose, not legislative, as duly provided for by the Constitution. Had the people of the United States, in 1787, chosen to provide, in the Constitution, for a Court of Impeachment consisting, say, of Governors of States, or that State Legislatures should have the sole power of impeachment, no one would claim that the governors or the legislators so engaged were exercising either executive or legislative functions. So the Houses of Congress engaged in an impeachment trial of the President, or of any “officer of the United States” are not engaged in legislation. If Congress possessed legislative power to remove the President, it could vacate the presidential office by an act and pass it over the President’s veto. Such a power vested in Congress would nullify the power vested in the President and would make him a creature of Congress.

91. The constitutional provision that when the Senate sits as a Court of Impeachment the Chief Justice of the United States shall preside,[234] in no way affects the judicial power vested in the supreme and inferior Courts of the United States. The reason for the provision is obvious. The Senate, which is the special Court of Impeachment, has ordinarily, and by the Constitution, two presiding officers: one, ex officio, the Vice-President; the other, the President pro tempore, who is a Senator.[235]

The conviction of a President removes him from the office and the Vice-President (or whosoever by law is in line of succession) succeeds him. The President pro tempore of the Senate, votes in the Court of Impeachment as a Senator. If either the Vice-President, or the President pro tempore presided over the Court of Impeachment, when a President is on trial, the principle of freedom from official, or one may say, personal bias would be violated. The Chief Justice presides,—an official of high rank, disinterested, save to be fair to all parties, and capable of so ruling. But when the Court of Impeachment sits to try other officials (except the Vice-President) the Chief Justice does not preside. When he presides and makes rulings they are not comparable to rulings or decisions he renders as the voice of the Supreme Court. The finding of the Court of Impeachment is not analogous to the decisions of that Court.

92. It follows therefore that the executive power of the United States, vested in the President, is not subject to the legislative or to the judicial power. It is independent of either or both. Yet the people of the United States have provided for their relief from a faithless execution of the office of President by combining Congress and the Chief Justice of the United States as a special body, or agency, a Court of Impeachment through which to secure relief.

93. It is evident that the power of the President of the United States is very great.

The scope of this executive power has never been realized [remarked President Hayes], and the practical use of power, even by an ordinarily strong President, is greater than the books ever described. The executive power is large because not defined in the Constitution. The real test has never come, because the Presidents, down to the present, have been conservative, or what might be called conscientious, men, and have kept within limited range. And there is an unwritten law of usage that has come to regulate an average administration. But if a Napoleon ever became President, he would make the executive almost what he wished to make it.[236] Practically the President has the nation in his hands.[237]

94. The principle, difficult to understand, regulative of the constitutional law of the executive power, is the principle of executive as distinct from ministerial power.