The true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be,—and conferring authority, or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.[359]
A very large proportion of the bills presented to Congress originate in the executive department. But Judge Ranney’s distinction (stated above) expresses the essential difference: it is Congress that determines what the law shall be. The bill, or measure, proposed, may come from a private citizen, or a State Legislature, or a railroad directorate, or the War Department, or a Committee of the House, or from some other source: it is Congress alone that can make it law. There is, however, a powerful check on the Executive as suggesting legislation: the check of public opinion, of custom, of precedent. These and like checks are sometimes called the limitations of the unwritten constitution.
137. The third check on the Executive is of removal from office for cause, by impeachment, in which procedure the House, the Senate, and the Chief Justice of the United States have definite offices.[360] Practically this check is utilized on political grounds; therefore it cannot be measured strictly as a process in law, although it is under a procedure distinctively in constitutional law. The check on the election of the Executive is essentially political, but that on the pardoning power, and on the command of the State militia is not political: yet all these checks, or limitations, are constitutional.
138. The constitutional limitations of the power of Congress,—checks on federal legislative power,—include term of service, qualifications for office, and authority in legislation. The large limitation is of term of service: six years for Senators; two years for Representatives. The people of the United States delegate legislative powers to Congress for a limited time. In an absolute monarchy there is no legislative, nor is there a time limit on the monarch as law-maker. Lincoln touched the vital spot when he said that the people have given their public servants but little power for mischief, having provided for the return into their own hands at very short intervals what little power they have delegated. Were Congress a corporation, with perpetual charter, and filling vacancies in its membership, it would, for practical purposes, exercise the office of sovereignty and would exercise power without limitation. The delegation of legislative power by the people of the United States is not to Senators or to Representatives, but to Congress, consisting of a Senate and a House of Representatives, and organized and proceeding according to the Constitution. The question in America is not alone, What will Congress do? but also, What can Congress do?
139. The expressed limitations of the power of Congress are that
(1) All duties, imposts, and excises shall be uniform throughout the United States.[361]
(2) No appropriations of money to raise and support armies shall be for a longer period than two years.[362]
(3) Militia officers must be appointed by the respective States.[363]
(4) No bill of attainder or ex post facto law shall be passed.[364]
(5) No tax or duty shall be laid on exports from any State.[365]