The executive power possessed by the president must be considered historically in order to reach an adequate view, both of its present scope and limitations and its growth since the adoption of the constitu tion. It is to be observed primarily that in the United States there is the fundamental condition that the executive power, whether of president or governor, is expressly grant ed, and the residuum of sovereignty is in the legislature, either federal or state as the case may be, and not in the executive, as in France and Germany, actually so, or, as in England, 'theoretically so. This remark is equally true as to its general results, not withstanding decisions; that the exprees grant of executive power carries with it cer tain implied powers. These were still pow ers of executing the laws, and not, as in the countries named, of supplementing or adding to them.
Though It le often said that the framers of the United States constitution, In creating the office of president, had In view, as a model, the English king; Pom. Const. Law § 176, a more recent and probably correct view Is that the office was rather modelled upon the colonial governor; 1 Goodnow, Comp. Adm. L. 52, and 1 Bryce, Am. Corn. 36. An examination of the poWers of the executive in each of the .three colonies of New York, Massachusetts, and Virginia leads Professor Goodnow to the con clusion that the American constitutional executive power was that which has been called the political or governmental power, and which had usually been exercised by the colonial governor, to which was added the carrying on of foreign relations, which, in the colonial period, were under the control of the mother country, and afterwards of the con tinental congress. The fact that the constitution, in vesting in the president the executive power, used the term as one whose meaning would be readily, understood, undoubtedly leads to the con clusion that the general powers so characterized wero ouch as people of the states were accustomed to have exercised by the governors, first of the colonies and then of the states. But see Stevens, Sources Const. S. ch, vi.
The specific powers conferred by the con stitution in addition to the general provision vesting the executive power in him, are that he shall be commander-in-chief of the army and navy and the militia of the states when in service; that he may require the opinions of the officers of the executive departments; grant reprieves and pardons, except in cases of impeachment ; make treaties with the ad vice and consent of the senate, two-thirds thereof concurring, and, the senate consent ing, appoint ambassadors, judges, and other officers whose appointment is not otherwise provided for by law ; give information to convene both houses, or either, and adjourn them, when they disagree with re spect to the time of adjournment, to such time as he shall think proper; receive am bassadors and other public ministers ; take care that the laws be faithfully executed ; and commission all officers; Const. art. ii.
§ 1, 2, 3.
This grant is said to have conferred upon the president the political power of an ex ecutive and one administrative power, viz., the power of appointment, beyond which' he had no control over the administration; 1 Goodnow, Comp. Adm. L. 63 ; Pom. Const. L. § 633.
The original powers of the president, un der the constitution, have been increased by acts of-congress conferring specific powers upon him and by decisions that his power is not limited by the express terms of legisla tive acts but includes certain "rights, duties, and obligations growing out of the constitu tion itself, our international relations, and all the protection implied by the nature of the government under the constitution" ; In re Neagle, 135 U. S. 1, 64, 10 Sup. Ct. 658, 34 L. Ed. 55. Under this implied power it was held that the president could take meas ures to protect a United States judge or a mail-carrier in the discharge of his duty without an act of congress authorizing him to do so ; In re Neagle, 135 U. S. 67, 10 Sup. Ct. 658, 34 L. Ed. 55 ; or, in the same man ner, to place guards upon the public lands to protect the property of the government. As an illustration of the exercise of this pow er the supreme court cites the executive ac tion which resulted in the release of Koszta from a foreign prison where he was confined in derogation of his rights as a person who had declared his intention to become an American citizen; In re Neagle, 135 U. S. 64, 10 Sup. Ct. 658, 34 L. Ed, 55. He may re move obstructions to interstate commerce and the transportation of the mails; and en force the full and free exercise of all na tional powers and the security of all rights under the constitution ; In re Debs, 158 U. S. 568, 15 Sup. Ct. 90Q, 39 L. Ed. 1092.