another philippine constitutional question: the delegation of legislative power to the president

7/30/2019 Another Philippine Constitutional Question: The Delegation of Legislative Power to the President

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Another Philippine Constitutional Question -- Delegation of Legislative Power to the President

Author(s): Edward B. WhitneySource: Columbia Law Review, Vol. 1, No. 1 (Jan., 1901), pp. 33-49Published by: Columbia Law Review Association, Inc.Stable URL: http://www.jstor.org/stable/1109749 .

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A PHILIPPINE CONSTITUTIONAL QUESTION. 33

ANOTHER PHILIPPINE CONSTITUTIONALQUESTION-DELEGATION OF LEGISLA-TIVE POWER TO THE PRESIDENT.

THE Philippine Islands became the property of theUnited States on April I I, I899, but Congress has as yetpassed no laws for their government, or for the protectionor regulation of the personal or property rights of their in-habitants.' They have been governed by the President inmonarchical form. He has not only executed the existinglaws of the islands, but has legislated also; and without au-

thority from Congress he has sent there a legislative bodyconsisting of five Commissioners, who discuss and passbills, and report to him through the Secretary of War.Whatever validity his legislative acts may have is de-rived from the fact of an insurrection throughout thegreater portion of the islands, which was already in exist-ence on April ii, 1899, and which is still pending. Beforethat date, when the islands belonged to Spain, he had thefull power of a military conqueror; and a military con-queror in foreign territory, even under our form of govern-ment, is not obliged to respect the theoretical division ofresponsibility between legislative, executive and judicialpowers. The President, as Commander-in-Chief, may evengo to the extent of providing a complete new code of laws,regulating the personal and property relations of his tem-porary subjects, as well as their governmental system.2Whether he has had the right to go to this full extent sincethe territory has been transferred to us by treaty, and hasbecome domestic, is a matter of doubt; but even in domesticterritory, during the pendency of an armed insurrectionthere, he may exercise many of the powers of a militaryconqueror, legislating at least so far as to set up a temporary

1 The only legislation other than for our army and navy is a very smallappropriation for postal service (31 Stat., 252).2Leitensdorfer vs. Webb, 20 How., 176, 178; Cross vs. Harrison, I6How., 164, I90.

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COLUMBIA LA W REVIEW.government of martial law, ignoring many constitutionalrights, and maintaining a court system and taxation systemof his own contrivance.'

We have received information, however, that all resist-ance to our forces in the islands would cease on November7, I9oo. While the exact date seems not to have been ob-served, we nevertheless hope for a speedy return of peace,when martial law and military despotism shall end; yetCongress has so far made no provision for the subsequentgovernment of the islands.Such a provision was proposed at the last session ofCongress by Senator Spooner of Wisconsin. His proposi-tion was understood to have the approval of the adminis-tration, and is commonly known as the Spooner Bill. Itwas introduced by him on January I , I900, was reportedwith approval by the Committee on the Philippine Islands,and became the regular order of business in the Senate onApril 4. It remained the regular order thereafter, but waslaid aside on special motion almost every day, and, while afew speeches were made about it, the session ended on June7 without any action. On December 4, the first workingday of the next and now pending session, it was displacedto make way for a subsidy bill, and is no longer the "un-finished business "; but it is still the only scheme of govern-ment for the Philippines which has had any serious backingin Congress.The law proposed by Senator Spooner was to go intoeffect when the insurrection " shall have been completelysuppressed." It was to remain in operation "until other-wise provided by Congress,'" in other words, for as long asany other statute. It delegated to the President and hisappointees the entire legislative and judicial power, so faras " necessary to govern " the islands. The islands were notto be governed through a scheme of legislation devised byCongress, as is the case with New Mexico, Arizona, Okla-homa, Alaska, Hawaii and Porto Rico, but they were to begoverned like a British Crown Colony--in other words,like a conquered country in military occupation.The question will at once occur whether this monarch-

1Texas vs. White, 7 Wall., 700, 730; The Grapeshot, 9 Wall., I29;Mechanics' Bank vs. Union Bank, 22 Wall., 276.

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A PHILIPPINE CONSTITUTIONAL QUESTION. 35ical form of government is to be altogether unhampered byconstitutional restrictions-whether the Filipinos are to beunprotected by the Bill of Rights, by the provision for uni-formity of taxation, and by the other guaranties of the Con-stitution. This I do not intend here to discuss.' If theseconstitutional guaranties operate in the Philippine Islands,and are available to the Filipinos, Congress is subject tothem in all its legislation. It cannot delegate to the Presi-dent any greater or more unrestricted legislative powersthan it possesses itself. The President therefore would beequally bound.The question which I propose to discuss in this articleis whether Congress has authority to delegate its legislativepowers to the President, and cast upon him its legislativeresponsibilities; a question which has been under discussionfor a century past, although never before our late war, ex-cept perhaps in one very temporary emergency, has it beeneven seriously proposed to confer upon him such a sweep-ing jurisdiction.I do not, however, intend to argue that it would be in-advisable, if constitutional. On the contrary, I think thatthe arguments in favor even of the most complete delega-tion of legislative power are so weighty that they shouldreceive respectful consideration. They may be stated underthree heads.

First, the precedents are in its favor. We have nocolonial precedents of our own that are of any great value,because we have never before annexed a settled and popu-lous country of alien tongue and traditions. A most ef-fective argument in favor of our ability to govern such acountry with mutual satisfaction and the approval of the1The legislative, executive and judicial precedentsare collected by thewriter,and the ablest discussions referredto, in an article on " The PortoRico Tariffs of 1899 and 19oo," Yale Law Journal, May, I900. Sincethen there has been a decision by Judge Townsend of Connecticut (Goetzevs. United States, I03 Fed. Rep., 72), now, with certain unreported de-cisions, before the Supreme Court for review. There have been a numberof decisions by the SupremeCourt of Hawaii upon these points (Peacockvs. Republic of Hawaii, 12 Hawaii, 27; Republic vs. Edwards, Id., 55;Honomu Sugar Co. vs. Sayewiz, Id., 96; ex 5arte Edwards, decided Oct.9, I90o; Territoryof Hawaii vs. Marshall,decided the same day). Thewhole subject is discussed by C. F. Randolph in his work on " The Lawand Policy of Annexation,"now inpress. Some analogous questions arisingout of our anomalous occupationof Cuba are now under advisementbytheSupreme Courtin the case of Neely vs. Henkel.



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COLUMBIA LA W REVIEW.civilized world has been the success of Great Britain indoing this same thing. It is therefore in order to examinethe method which Great Britain uses under similar circum-stances ; and if we find that method to be one permitted byour Constitution, the burden of proof may be considered asupon those who urge that it be disregarded, and that somenovel and untried system be substituted. Parliament rec-ognizes that home affairs deserve its first attention, and arevaried enough to occupy its time, and it does not attemptto provide the necessary legislation for the British coloniesor dependencies. For those which- have attained such aposition that they are entitled to govern themselves, Parlia-ment provides an enabling act which is practically a con-stitution, and thereafter interferes no longer. Until acolony has reached the stage of self-government-so longas it is in the position of the Philippines-its legislation isnot enacted by Parliament, but by the Crown in Council.A new colony acquired by conquest or cession comes as amatter of course under the jurisdiction of the Crown inCouncil, although the Crown cannot make laws " contraryto the fundamental principles" of English law, or, as weshould say, its legislation must be constitutional.Second, it is a matter of doubt whether our legislativemachinery is such as to yield the best results in the presentsituation. The problems presented are very,delicate, verydifficult and very complex. The amount of legislationwhich will be required by these numerous islands withtheir varied population and civilization is probably great.It should be drafted by persons who have familiarizedthemselves with all of the conditions on the spot-personsfamiliar with the language, history, customs, traditions,prejudices and manners of both Spaniard and Malay. Evenwere these conditions fulfilled, missteps must be expected-missteps which it will be to the interest of all parties quicklyto retrace. Congress is not in session all the time, and itcan pay but a small fraction of its attention to trans-oceanicdifficulties. But few persons can be possessed of the fundof information necessary as a basis for proper legislation,and those persons cannot easily be brought into contact

1See Anson's Law of the Constitution, 2d ed., vol. ii., p. 264, ef seq.

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A PHILIPPINE CONSTITUTIONAL QUESTION. 37with the working committees at Washington. Howeverimportant it may be to push through rapidly some pieceof legislation, it will be antagonized with every kind ofdomestic question, as well as with the affairs of Porto Rico,Hawaii and Nicaragua, not to speak of the oppressed ofother countries who may receive legislative sympathy.Deadlocks must thus be expected, even in the presentunusual situation, when the President has a working ma-jority of supporters in both branches of Congress. It isquite possible that this situation will terminate on March3d, I903, and that we may enter another period of normallegislative deadlock, like that which lasted with slight in-terruption from 1875 to I897. If the Spooner bill be passed,it will be within the power of the present and each succeed-ing President to keep a commission of trained experts atManila, who may continue to legislate for the benefit of thePhilippine Islands until the inhabitants of those islands arethemselves prepared to take up the work, and then deputeto a native or partly native assembly such portions of helegislative power as may be best, subject, of course, to thepower of Congress to step in and establish a permanentterritorial government in the islands.Third, if Congress, deeming it inadvisable at present togrant legislative autonomy to the islands, attempts to dowhat Parliament has never attempted to do, namely, pro-vide the necessary legislation itself, then we must be thesufferers, for the proper discharge of the duties thusassumed will take up months of every congressional ses-sion, and measures in which we are more immediatelyinterested must stand aside, just as at the last session ofCongress the Spooner bill, although it came to nothing,crowded out the Nicaragua Canal bill and other measuresof public interest. There is certainly considerable force inthe contention that it would be better for us, as well as forthe Filipinos, if President McKinley until I905, and hissuccessor thereafter, whoever and of whatever party hemay be, can have the sole power and sole responsibility oflegislating for these islands.But can this power and this responsibility be placedupon them?Our government is divided into three branches, execu-



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COL UMBIA LA W RE VIE W.tive, legislative and judicial. Its theory is that each branchshall perform its own functions, and not delegate them tothe other. The maxim that the Legislature cannot delegatethe power to make laws is as old as Locke.1 Judge Cooleywho has treated it more fully than any other text writer ofauthority, says: "One of the settled maxims in constitu-tional law is that the power conferred upon the Legislatureto make laws cannot be delegated by that department toany other body or authority. Where the sovereign powerof the State has located the authority, there it must remain,and by the constitutional agency alone the laws must bemade until the constitution itself is changed. The powerto whose judgment, wisdom and patriotism this high pre-rogative has been intrusted cannot relieve itself of theresponsibility by choosing other agencies upon which thepower shall be devolved, nor can it substitute the judg-ment, wisdom and patriotism of any other body for thozeto which alone the people have seen fit to confide tnissovereign trust."2The United States Supreme Court has recognized themaxim from an early date, and it received the endorsementof all the judges in Field vs. Clark, the leading case onthis subject.3 Justice Harlan said: " That Congress cannotdelegate legislative power to the President is a principleuniversally recognized as vital to the integrity and main-tenance of the system of government ordained by the Con-stitution."4 Justice Lamar said: "That no part of thislegislative power can be delegated by Congress to anyother department of the government, executive or judicial,is an axiom in constitutional law, and is universally recog-nized as a principle essential to the integrity and mainte-nance of the system of government ordained by the Consti-tution. The legislative power must remain in the organwhere it is lodged by that instrument." 5An exception may be claimed to exist here, because1" The legislative neither must nor can transferthe power of makinglaws to anybody else, or place it anywhere but where the people have."(Locke on Civil Government,Sec. I42.)2 Cooley's ConstitutionalLimitations,6th ed., p. 137.I43 U. S., 649.4Id., p. 692.5d., p. 697.

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A PHILIPPINE CONSTITUTIONAL QUESTION. 39Congress can concededly delegate to the President, toCabinet officers or to the courts the power to make mere" rules and regulations," according to our current phrase-ology; while'the right to legislate for the Territories iscommonly attributed to the constitutional provision grant-ing power to Congress to " make all needful rules and regu-lations respecting the territory or other property belongingto the United States." 1 There has always been doubt,however, whether this provision has any application toterritory acquired since I789.2 And the words "rules andregulations" have always been treated in the practical con-struction of the Constitution as the equivalent of "statutes."Provisions for the Territories have commonly been insertedin statutes mainly intended for the States. Moreover, thisspecial power is expressly confided to Congress as fully asis the general power of legislation, so that if one powercan be delegated to the President, it would seem that theother can be delegated to him also.But while the United States Supreme Court has atvarious occasions recognized the general principle thatlegislative power cannot be delegated,3 it has never yetfound it to be applicable to any case that actually came be-fore it for decision; and while the principle as a generalprinciple has been generally recognized in the State courts,the actual number of statutes which have been by them de-clared unconstitutional is but small, and even of these deci-sions a majority have either been overruled, or generallydisapproved, upon the point decided. In fact, the two caseswhich Judge Cooley in his shorter work refers to as theleading applications of this constitutional principle,4 have

1Constitution,Art. IV, Section 3.2 American Insurance Co.vs. Canter, I Pet., at pp, 542-3, 546; UnitedStates vs. Gratiot, 14 Pet., at p. 537; National Bank vs. Yankton, IOIU. S.,at p. 132. The fullest judicial treatment is in Dred Scott vs. Sandford, 19How., at pp. 432-447, 500-5I 5, 604-6 5.3 Wayman vs. Southard, io Wheat., I, 42, per Marshall, C.J.; Bank ofUnited States vs. Halstead, Id. 5, 6i ; In re Rahrer, I40 U. S., 545, 560;Field vs. Clark, supira.4 Cooley on the Constitution, 3d ed., p. I I , citing Barto vs. Himrod, 8N.Y., 483 (declaring a referendum to the people of the entire State invalid),and Rice vs. Foster, 4 Harringt., 479 (prohibiting local option laws, andsimilar instances of a referendum to the people of a county or municipality).The other case cited is a mere dictum, the application of the principlebeing denied.



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COLUMBIA LA W REVIEW.both met with a great amount of disapproval by subsequentcourts and writers, including Judge Cooley himself.' Thedecisions which were the original supports of the doctrinehave thus been knocked from under it. New applicationsof the principle are still occasionally made by the Statecourts, however.2In one of the earlier cases upon the power to delegatelegislative authority, Chief Justice Marshall said that ' theprecise boundary of this power is a subject of delicate anddifficult inquiry,"3 and subsequent adjudications, whileproving the delicacy and difficulty of the inquiry, and ex-tending to some extent what was at that time supposed tobe the probable boundary of the power, have failed to locatethe boundary even approximately. The question has severaltimes since Field vs. Clark been elaborately argued beforethe Supreme Court of the United States in cases of impor-tance, but the court has each time found some other pointupon which the decision might turn.4Statutes like that considered in Field vs. Clark, andstatutes submitted to the referendum, are enacted by thelegislature in complete form, and await only the executivedecision or the popular vote to go into operation. Butstatutes which delegate full legislative power--power todraft the law as well as to give it operation-are also familiar.

1 See Cooley's Constitutional Limitations, 6th ed., notes to pp. 142-4,approving passages quoted from State vs. Parker, 26 Vt., 357, and Smithvs. Janesville, 26 Wis., 29I. The Barto case has some support outside ofNew York, but there is now an immense weight of authority against theRice case.2 Adams v. Burdge, 95 Wis., 390; Dowling vs. Insurance Co., 92 Wis.,63; O'Neill vs. Insurance Co., I66 Pa. St., 71; Sanders vs. Southern ElectricRy. Co., 147 Mo., 41I, 426-7.3 Wayman v. Southard, io Wheat., I, 46: " There is perhaps no classof questions ever presented for judicial consideration which involve morereal difficulty, or leave greater room for the mind to remain in doubt" (In

re Oliver, 17 Wis., 68I). " The great difficulty exists in the attempt to fixon the precise boundary line between legislative and executive powers intheir practical operation. This is not possible. You might attempt thesearch for the philosopher's stone, or the discovery of the perpetual motion,with as much prospect of success " (Mr. Giles, of Virginia, in the Senate,Annals of Congress, Dec. 21, I808, p. 259).4 United States v. Rider, 163 U. S., 132; Lake Shore Railway v. Ohio,I65 U. S., 365, 368; Cruickshank v. Bidwell, 176 U. S., 73; Rider v. UnitedStates, 178 U. S., 251, 258-9; see also United States v. Keokuk Bridge Co.,45 Fed. Rep., 178; United States vs. Rider, 50 Fed. Rep., 406; UnitedStates v. City of Moline, 82 Fed. Rep., 592.

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A PHILIPPINE CONSTITUTIONAL QUESTION. 41Thus, the legislature, after indicating the general featuresof a proposed system of legislation, may delegate the rightto work out the details, as by authorizing an executive de-partment to adopt regulations,' or by authorizing the judi-ciary to adopt rules of practice.2 It may delegate to theofficers of a territorial subdivision or municipality very widepowers of legislation for purely local purposes.3 Nor isCongress confined to the Executive and Judiciary in dele-gating the power to fix the details of legislation. It maypermit such subjects as ascertaining the proper qualifica-tions for transacting business requiring professional skill tobe referred to official associations of persons learned in thelaw, in medicine, or in other skilled vocations.4Broad powers are delegated to Territorial Legislatures,but this is the case also with legislatures of municipalities.It is not essential that a territory, or that a city, shouldhave an elective legislature ;5 but it would be a novelty todelegate the whole legislative power either to a Presidentor to a governor, to be exercised at his discretion throughsuch forms as he might select. In granting all legis-lative, as well as executive and judicial, authority overthe Philippines to the President, as the Spooner bill seemsmeant to do, it is without precedent. Its introducersaid indeed: " It is fashioned after the Louisiana bill. Itis fashioned after the Hawaiian resolution."6 The pres-ent bill is to a considerable extent fashioned after the billof a century ago; but with differences that are radical, as

1 In re Griner, I6 Wis., 423, and precedents cited; United States vs.Bailey, 9 Pet., 238; Caha vs. United States, 152 U. S., 211, 219; UnitedStates v. Ormsbee, 74 Fed. Rep., 207.

2 Wayman v. Southard, 10 Wheat., I.3 Paul vs. GloucesterCounty, 50 N. J. Law, 585, 600; I Dillon on Munic-

ipal Corporations,Sec. 308.4 Scholle vs. State, Ioo Md., 729, and cases cited; Hewitt vs. Charier, I6Pick., 353; see Dent vs. West Virginia, 129 U. S., 114, 122; State vs.Heinemann, 80 Wis., 253, 257-8. Standards of importable drugs have forfifty years past been fixed in part by foreign pharmacopoeias U. S. Rev.St., Sec. 2935).

5 See I Stat., 51, n. 123, 550; 2 Id., 284.6 Congressional Record, May 24, I900, p. 6690.



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COLUMBIA LA W REVIEW.may be seen by placing them in parallel columns.' Thereare two differences. The Louisiana act, originally drawn soas to operate like other laws for the indefinite future,2 wasamended on motion of the then leader of the House ofRepresentatives, John Randolph, of Roanoke, so as to havebut a temporary effect; and in the language of the moverit "compelled Congress to take early measures for reducingthis enormous power delegated to the Executive."3 Mr.Randolph said: " If we give this power out of our hands, itmay be irrevocable until Congress shall have made legis-lative provision; that is, a single branch of the Government,the Executive branch, with a small minority of either House,may prevent its resumption. He did not believe that underany circumstances it was proper to delegate to the Exec-utive a power so extensive."4 This emergency measure, soclosely restricted in point of time, also delegated little, ifany, genuine legislative power to the President. It did not,as now proposed, delegate to him all the powers " necessaryto govern" the new territory, but only those powersactually " exercised by the officers of the existing govern-ment of the same." The President could grant no newpower, although he had some vague authority to regulatethe " manner" of exercising the powers already existing.In other words, the Louisiana act was analogous to the nowfamiliar type of legislation which grants power in outline,the outline to be filled in by departmental regulations or

1 Louisiana Act. Spooner Bill.Until the expiration of the pres- [After the termination of the in-ent session of Congress,unless pro- surrection]all military,civil andjudi-vision for the temporarygovernment cial powers necessaryto govern theof the said territoriesbe sooner made said islands shall, until otherwiseby Congress, all the military, civil, provided by Congress,be vested inand judicial powers exercised bythe such person and persons and shallofficers of the existing government be exercised in such manner as theof the same, shall be vested in such Presidentof the United States shallperson and persons, and shall be ex- direct for maintaining and protect-ercised in such manner,as the Pres- ing the inhabitantsof said islands inident of the United States shall di- the free enjoyment of their liberty,rect for maintaining and protecting propertyand religion.the inhabitants of Louisiana in thefreeenjoymentof their liberty,prop-erty and religion (2 Stat., 245).2 Annals of Congress, October, I803, pp. 18, 498.3Id., p. 498.4Id.

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A PHILIPPINE CONSTITUTIONAL QUESTION. 43court rules. This emergency measure was debated but asingle day.' Although its operation was subsequently ex-tended for a short time,2 it remained in operation buteleven months, and was never brought to the attention ofthe courts; and the constitutional objections ably urged bythe opposition leader, Roger Griswold, of Connecticut,were defeated largely, doubtless, upon the reasoning abovestated.

The Hawaiian annexation resolution3 went a step fur-ther than the Louisiana bill, for it was given an indefiniteoperation; but it still fell radically short of the Spoonerbill, for it, like the Louisiana resolution gave to the Presi-dent, but a restricted legislative power, if any.4 I do notthink that the Hawaiian resolution is entitled to seriousconsideration as a precedent. It was pressed through underthe excitement of the early period of the Spanish War. Itinvolved new and momentous problems, as for the firsttime we were annexing a settled and populous land beyondthe seas. The constitutional arguments in Congress turnedupon the question whether foreign territory could be an-nexed by act of Congress otherwise than as a State5, andlittle, if any, notice was taken in the debate of the questionnow before us. Moreover, the Hawaiian resolution is toorecent to have weight as a practical exposition of the Con-stitution.

For these reasons I think that the courts, if the consti-tutionality of Mr. Spooner's measure shall ever come beforethem for consideration, will not rest their decision upon leg-1 Annals, October 27, 1803, pp. 498-514.2 Act of Mar. 26, I804, Chap. 38, Sec. I6.3 Joint resolution of July 7, I898, 30 Stat., 750.4 " Until Congress shall providefor the governmentof such islands allthe civil, judicial and militarypowers exercised by the officersof the exist-ing government in said islands shall be vested in such person or persons,and shall be exercised in such manner as the President of the UnitedStates shall direct."5 Early annexations had been justifiedbythe Courts under the war andtreaty making powers. Texas was annexed as a State underthe powertoadmit new States. Power to annex a mere territory by a legislative act hadbeen denied by SenatorThurman and others in the San Domingo debateof I870, and the question was ably debated on both sides in I898. Theprecedent relied upon by the supportersof the resolution was the GuanoIslands Act of I856 (Jones vs. United States, 137 U. S., 202, 209, 212).The Hawaiian Supreme Court has since recognized the difficultyof thisquestion in Peacock vs. Republic of Hawaii (supra).



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COLUMBIA LA W REVIEW.islative precedents. The question will be an original one,and will be treated as such.The Guano Islands Act of 1856 delegated to the dis-cretion of the President, unhampered by any rules or limi-tations, the question whether newly discovered GuanoIslands should " be considered as appertaining to the UnitedStates." The Supreme Court in sustaining the statutecalled this "a strictly executive power."' It certainly in-volved a very wide discretion, and upon a most importantmatter, if the view be correct which treats his affirmativeaction as annexing the islands to this country.2The above-quoted case of Field v. Clark,3 arising underthe McKinley Tariff Act of 1890, is the one in which theSupreme Court has come nearest to marking the boundarywithin which legislative power may be delegated. Whiledenying the right to delegate, the majority of the Courtstate in their opinion that the Legislature may provide thata statute shall not take effect until " upon a named contin-gency," when " the proper occasion exists," upon the occur-rence of " some fact or state of things upon which the lawmakes,or intends to make, its own action depend." They saythat the question of fact as to whether the time has arrivedmay be left to the decision of an executive officer.4 Thisseems on a first reading a simple and practicable distinction.If, however, we examine the question thus left to the Presi-dent's uncontrolled discretion, we find that it was some-thing very different from the ordinary "question of fact "so familiar to a lawyer. It was whether "the governmentof any country producing and exporting sugars, molasses,coffee, tea and hides, raw and uncured, or any of such arti-cles, imposes duties or other exactions upon the agriculturalor other products of the United States, which in view of thefree introductionof such sugar, molasses, coffee,tea and hides intothe United States he may deem to be reciprocally unequal andunreasonable." If he deemed them so, the President wasto collect certain specified duties upon imports from thatcountry,

Jones vs. United States, 137 U. S., 202, 209, 215.2 Hawaiian debate (supra).3 143 U. S., 649.4 Id., at pp. 692-4.

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A PHILIPPINE CONSTITUTIONAL QUESTION. 45The Court in its opinion also intimate approval of

the act of I794, authorizing the President to lay an embargoon all ships and vessels in the ports of the United States"whenever, in his opinion, the public safety shall sorequire ;"' and of the act of 1799, authorizing the Presi-dent to resume commercial intercourse with France "if heshall deem it expedient and consistent with the interest ofthe United States," and to break off intercourse again"whenever, in his opinion, the interest of the UnitedStates shall require."2 According to the doctrine of theField case, therefore, the execution of a law may be madeto depend upon the question whether the President deemsit advisable that the law should go into operation.The Court has recently gone a step farther in the caseof Dunlap v. United States.3 That case arose under a lawgranting a rebate of the tax upon alcohol "under regula-tions to be prescribed by the Secretary of the Treas-ury."4 The Secretary refused to provide regulations, andthe Court construed the law as having " left it to the Sec-retary to determine whether or not such regulations couldbe framed, and if so, whether further legislation would berequired," saying that "it was the statute itself which post-poned the existence of the right until the Secretary hadprescribed regulations, if he found it practicable to do so."The constitutional question was brought to the attention ofthe Court in this case, which was argued for the claimantby eminent counsel.It seems to me that in both of these cases there waswhat the Courts have often called a delegation of legis-lative discretion. There was no standard provided bywhich the President should judge whether foreign legis-lation was "reciprocally" unequal and unreasonable, in

1 Id., p. 691.2 The Court treats these early laws as a contemporaneous and practicalconstruction of the Constitution; but the constitutional question wasraised and debated in Congress a few years later with elaborate examina-tion of the precedents (Annals of Congress, I807-8, pp. 2198-2241 ; Id.,I808-9, pp. 245-298, 315), and the language of similar laws was thereaftersomewhat modified, perhaps, to meet these objections. " The ReciprocityActs of 1890. Are they Constitutional?" American Law Register andReview, March, 1892.3 173 U. S., 65.4 Tariff Act of August 28, 1894, Sec. 6I.



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COLUMBIA LA W RE VE W.view of the concessions made by us to foreign Govern-ments. It is difficult to see why Congress should not aswell provide that the President might remove the articlesnamed into the dutiable list, if he should at any timedeem the revenue in need of replenishment, or our in-dustries in need of encouragement. There was no stand-ard provided by which the Secretary of the Treasury shouldjudge whether it was practicable to grant a rebate on alcoholwithout further legislation. It is difficult to see why Con-gress should not as well provide that he might discontinuecertain tariff or internal revenue duties if they did not paythe cost of collection, or if they caused retaliation by foreignStates, or resulted in the control of industries by large com-binations of capital.Both of these so-called questions of fact, and still morethose involved in the acts of I794 and I799 to which I havealluded, were questions involving the use of that kind ofdiscretion which ordinarily is the basis of legislative action;but in all of these cases, the Legislature thought that thediscretion could be more wisely exercised by an executiveofficer than by itself. And if the Legislature is of thatopinion, why should it not have the power to delegate itsdiscretion ?

If a given scheme of legislation may be adopted merelyin outline, to be filled in by the Executive, and if its opera-tion may be suspended until the Executive shall consider itpracticable or fair to foreign nations, or for the best interestof the United, States, for the law to have effect, does itfollow that a given subject of legislation may be delegatedto the Executive altogether, to provide the scheme as wellas the details? It is difficult to say why the line should bedrawn just short of this, after the previous extensions.'It seems to me that the courts, while repeating indeedthe old maxim that legislative power cannot be delegated,

1 In Martin vs. Witherspoon, I25 Mass., 175, the court sustained adelegation to the Executive of the subject of pilotage regulations. Thepower to remit penalties, originally regarded as legislative (6 U. S. Stat., 3),was delegated to the Secretary of the Treasury at an early date (The Laura,114 U. S., 411, and stat. cit.). To the Executive has been delegated thesubject of game laws, and importation of fire arms, in Alaska (U. S. Rev.St., Sections I955, J956). Wide powers are delegated to the President bythe national health legislation (Rev. St., Section 2494; Food Act of August30, 1890, Sections 4, 5).

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A PHILIPPINE CONSTITUTIONAL QUESTION 47have very nearly overthrown it, and have done so becauseit was not based on sound reasoning, and has always beenimpracticable in application. The maxim is, in fact, a re-striction upon legislative power. If Congress believes thatthe practical limitations upon its own time and upon itsown means of information are such that all legislation uponone subject or upon all subjects in the Philippine Islandscould be better provided by the President through residentcommissioners or otherwise than by itself, why shouldCongress not have the power to make such an arrangement?If it has not the power to delegate a part of its functionswhen such a delegation is in accordance with public inter.est, and in accordance with its own wishes, then it seems tome that there is a most serious defect in its authority.It may be conceded that the Legislature cannot dele-gate distinctly legislative functions to the Executive, anymore than to the Judiciary, without the consent of thelatter. No department can be made to do the duties ofanother department, except by its own consent. It may beconceded also that a statute is conceivable-although per-haps none has ever been actually enacted-which would beincontestably void as a delegation of legislative power.Thus, if we assume that at the end of the second year of apresidential term one of the political parties is in possessionof the three branches of the Legislature (President, Senateand House), and that the Senate and House are about topass into the control of the opposite party by less than atwo-thirds' majority, it is conceivable that a law might beenacted delegating the entire legislative power to the President for the remainder of his term, in order that the out-going party might retain its grip on the Government; andsuch a statute may be conceded to be unconstitutional.But if I have correctly construed the Field and Dunlapcases, then every statute is constitutional which evincesupon its face a legislative belief that some executive orjudicial officer is better fitted than Congress to prescribethe course of action necessary to effectuate some particular

1 A similar argument is made by Frear, J., in support of the doctrinethat territory may be annexed by a statute or treaty which provides for atransition period before the Constitution and laws of the United States shall,have full application, in Peacock vs. Republic of Hawaii, supra.



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COLUMBIA LA W REVIEW.result which Congress desires, and such a statute will op-erate, at least unless the officer upon whom the burden iscast declines to bear it; and perhaps it is not improbablethat this principle may be held broad enough even to coveran entire subject such as the internal government of thePhilippines-especially if legislation on the lines of theSpooner bill may have the good fortune to come into courtstrengthened by a mass of rights vested under it, by theprestige of a successful colonial establishment, and by theforce of public opinion.If, however, the present Congress fail to pass even sucha bill, and if before the assembling of its successor thePhilippines may be fortunate enough to see the terminationof the war, then there will be no legitimate method ofaffording any legislation for their needs, however pressing.When the President shall proclaim that peace has come,his present legislative powers will thereupon absolutelycease. Except in the abnormal condition of war, and byvirtue of his authority as Commander-in-Chief, the Execu-tive has no legislative power under our Constitution.1 Thatpower is confided to Congress. Until Congress shall act,the then existing Government and laws of the PhilippineIslands, no matter how defective or harmful they may turnout to be, must remain in statu quo2, except, indeed, so faras they are inconsistent with our constitutional guaranties,and therefore void.3 Whatever legislative powers, if any,may have inhered in the Spanish crown, are not inheritedby the President. " Every nation acquiring territory bytreaty or otherwise must hold it subject to the Constitutionand laws of its own government, and not according to thoseof the Government ceding it."4 His powers will be con-fined to the execution of the hold-over laws, whatever at

1I refer of course to domestic territory,not undertakingto discuss hislegal position in Cuba, where he is the de facto rulerof what is in ourcourts (whateverit may be in internationallaw) a foreign country.2 Cross vs. Harrison, I6 How., 164, I95, I98-9; Leitensdorfer vs.Webb, 20 How., 176, 178. The President's power was "so long as the warcontinued" (Texas vs. White, 7 Wall., 700, 730). This seems to beadmitted by the present Attorney-General (22 Atty. Gen. Op., at p. 549,July 27, I899).3 See Chicago, &c., Ry. Co. vs. McGlinn, II4 U. S., 542, 546; Crossvs. Harrison, I6 How., at p. I85, quoting SecretaryBuchanan.4 Pollard's Lessee vs. Hagan, 3 How., 212, 225.

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A PHILIPPINE CONSTITUTIONAL QUESTION. 49that moment they may happen to be. He may indeed, ifand so far as a present condition of belligerency may nowenlarge his constitutional powers, prevent a judicial deci-sion of his incapacity by delaying his proclamation of peace,pretending that there is war when there is no war; for thejudiciary treat his proclamation as conclusive upon such apoint, and take no evidence to prove the contrary.1 Butthis would be a subterfuge unworthy the head of a greatnation, and not, therefore, one which we have a right toexpect. If the legislative branch of our Government shalladjourn for nine months on March 4, next without provid-ing for the future rule of the great archipelago which willthen have been for nearly two years under our protection,it will have given a strong argument to those who claimthat our institutions are unsuited to the responsibilities of aworld-encircling empire. EDWARD B. WHITNEY.

1 More vs. Steinback, 127 U. S., 70, 80; compare United States vs.Anderson, 9 Wall., 56, 70; The Protector, I2 Wall., 700; The ThreeFriends, I66 U. S., I, 63.

another philippine constitutional question: the delegation of legislative power to the president

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