3. Those emanating from, and depending on, the constitutional authority of the President, as commander-in-chief of the army and as execu tive, and not made in supplement to particular statutes. These constitute the greater part of the army regulations. They are not only modified at will by the President, but exemp tions from particular regulations are given in exceptional cases; the exercise of this power with reference to them being found necessary. °The authority which makes them (regulations) can modify or suspend them as to any case, or class of cases, or generally.* 4. Departmental regulations, made by virtue of the authority conferred by section 161, Re vised Statutes, on the head of each depart ment °to prescribe regulations not inconsistent with law, for the government of his depart ment, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of its records, papers and property 'appertaining thereto.* Mere repetitions of legislative enactments are not included under any of these heads. A long continued practice has been held equivalent to a specific regulation.
As to the subject-matter of regulations for the government of the army, no distinct line can be drawn separating the President's con stitutional power to make them from the con stitutional power of Congress °to make rules for the government and regulation° of the land forces. Regulations are, when they relate to subjects within the constitutional jurisdiction of Congress, unquestionably of a legislative character; and if it were practicable for Con gress completely to regulate the methods of mili tary administration, it might, under the Consti tution, do so. But it is entirely impracticable, and therefore it is in a great measure left to the President to do it. So far as Congress chooses to exercise its jurisdiction in this re spect, it occupies the field, and the President cannot encroach on it. But when it does not see fit to do so, the President's power, of neces sity, is called into action. It is, indeed, of the commonest occurrence for Congress to regu late a subject in part, and for the Executive to regulate some remaining part, and this without any pretense of statutory authority, but upon the broad basis of constitutional power. We thus have a legislative jurisdiction, and, sub ject to it, an executive jurisdiction extending over the same matter.
So, also, as between the legislative and judi cial powers, Congress may regulate the pro cedure of the Federal courts, but in so far as it does not do it, the courts may prescribe their own regulations. And this is, in fact, the exist ing condition. Congress has exercised the power in part, leaving it to the courts to regu late what it has not provided for. Courts can not exercise their jurisdiction without rules of procedure, and necessarily have the original power of adopting their own when the legisla ture does'not prescribe them; just as the Presi dent cannot exercise his power as commander in-chief without the power to make orders for the regulation of the army. In fact, each
branch of government — the legislative, execu tive and judicial—has the original power of making regulations for the transaction of its business— most manifestly so when the busi ness is of direct constitutional origin — but the legislative has sometimes a jurisdiction over the regulations of the other branches, and when this happens its jurisdiction is superior.
In speaking of the powers of Congress over the administration of the affairs of the army, it is, of course, not intended to include what would properly come under the head of the direction of military movements. This belongs to command, and neither the power of Congress to raise and support armies, nor the power to make rules for the government and regulation of the land and naval forces, nor the power to declare war, gives it the command of the army. Here the constitutional power of the President as commander-in-chief is exclusive.
When Congress fails to make regulations with reference to a matter of military adminis tration, but either expressly or silently leaves it to the President to do so, it does not dele gate its own legislative power to him, because that would be unconstitutional, but expressly or silently gives him the opportunity to call his executive power into play. It is, perhaps, not easy to explain why, if regulations may, under the Constitution, be made both by the legislative and executive branches, one should have pre cedence over the other; but it is to be noticed that the power of Congress is the express one to make rules for the government and regu lation of the land and naval forces,* whereas the power of the President is a construction of his position as executive and commander-in chief. The legislative power, by the words quoted, covers the whole field of military ad ministration, but it is not always certain how far the executive power may go. It is not as well defined as the legislative power, but it is undoubtedly limited to so much of the subject as is not already controlled by the latter. The jurisdiction of the executive power is not, how ever, within this limit, coextensive with that of the legislative power, because the legislative branch of the government has a constitutional field of operation peculiar to itself, and yet there are army regulations which seem to be of a legislative character. It is because of this that difficulty sometimes occurs, a difficulty which has in the past quite often taken the form of a difference of views between the War Department and the accounting officers of the Treasury.