The Constitution of the United States of America: Analysis and Interpretation
Chapter 83 : The question of Congress's right also to recognize new states was prominently rais

The question of Congress's right also to recognize new states was prominently raised in connection with Cuba's final and successful struggle for independence. Beset by numerous legislative proposals of a more or less mandatory character, urging recognition upon the President, the Senate Foreign Relations Committee, in 1897, made an elaborate investigation of the whole subject and came to the following conclusions as to this power: "The 'recognition' of independence or belligerency of a foreign power, technically speaking, is distinctly a diplomatic matter. It is properly evidenced either by sending a public minister to the Government thus recognized, or by receiving a public minister therefrom. The latter is the usual and proper course. Diplomatic relations with a new power are properly, and customarily inaugurated at the request of that power, expressed through an envoy sent for the purpose. The reception of this envoy, as pointed out, is the act of the President alone. The next step, that of sending a public minister to the nation thus recognized, is primarily the act of the President. The Senate can take no part in it at all, until the President has sent in a nomination. Then it acts in its executive capacity, and, customarily, in 'executive session.' The legislative branch of the Government can exercise no influence over this step except, very indirectly, by withholding appropriations. * * * Nor can the legislative branch of the Government hold any communications with foreign nations. The executive branch is the sole mouthpiece of the nation in communication with foreign sovereignties. Foreign nations communicate only through their respective executive departments. Resolutions of their legislative departments upon diplomatic matters have no status in international law.

In the department of international law, therefore, properly speaking, a Congressional recognition of belligerency or independence would be a nullity. * * * Congress can help the Cuban insurgents by legislation in many ways, but it cannot help them legitimately by mere declarations, or by attempts to engage in diplomatic negotiations, if our interpretation of the Const.i.tution is correct. That it is correct * * * [is] shown by the opinions of jurists and statesmen of the past."[348] Congress was able ultimately to bundle a clause recognizing the independence of Cuba, as distinguished from its government, into the declaration of war of April 11, 1898 against Spain. For the most part, the sponsors of the clause defended it by the following line of reasoning. Diplomacy, they said, was now at an end and the President himself had appealed to Congress to provide a solution for the Cuban situation. In response Congress was about to exercise its const.i.tutional power of declaring war, and it has consequently the right to state the purpose of the war which it was about to declare.[349] The recognition of the Union of Soviet Socialist Republics in 1933 was an exclusively Presidential act.

THE POWER OF NONRECOGNITION

The potentialities of nonrecognition were conspicuously ill.u.s.trated by President Woodrow Wilson when he refused, early in 1913, to recognize Provisional President Huerta as the _de facto_ government of Mexico, thereby contributing materially to Huerta's downfall the year following.

At the same time Wilson announced a general policy of nonrecognition in the case of any government founded on acts of violence; and while he observed this rule with considerable discretion, he consistently refused to recognize the Union of Soviet Socialist Republics, and his successors prior to President Franklin D. Roosevelt did the same. The refusal of the Hoover Administration to recognize the independence of the j.a.panese puppet state of Manchukuo early in 1932 was based on kindred grounds.

Nonrecognition of the Chinese Communist government by the Truman administration has proved to be a decisive element of the current (1952) foreign policy of the United States.

PRESIDENT AND CONGRESS

The relations of President and Congress in the diplomatic field have, first and, last, presented a varied picture of alternate cooperation and tension,[350] from which emerge two outstanding facts: first, the overwhelming importance of Presidential initiative in this area of power; secondly, the ever increasing dependence of foreign policy on Congressional cooperation and support. First one and then the other aspect of the relations.h.i.+p is uppermost. Thus the United Nations Partic.i.p.ation Act of December 20, 1945 appeared to contemplate cooperation between the President and Congress in the carrying out of the duties of the United States to back up decisions of the Security Council involving the use of armed force.[351] When, nevertheless, the first occasion arose such action, namely, to repel the invasion in June, 1950 of South Korea by North Korean forces, no such agreement had been negotiated, and the intervention of the United States was authorized by the President without referring the question to Congress.[352]

CONGRESSIONAL IMPLEMENTATION OF PRESIDENTIAL POLICIES

No President was ever more jealous of his prerogative in the realm of foreign relations than President Woodrow Wilson. When, however, strong pressure was brought to bear upon him by Great Britain respecting his Mexican Policy he was constrained to go before Congress and ask for a modification of the Panama Tolls Act of 1911, which had also aroused British ire. Addressing Congress, he said "I ask this of you in support of the foreign policy of the Administration. I shall not know how to deal with other matters of even greater delicacy and nearer consequence if you do not grant it to me in ungrudging measure."[353] The fact is, of course, that Congress has enormous powers the support of which is indispensable to any foreign policy. In the long run Congress is the body that lays and collects taxes for the common defense, that creates armies and maintains navies, although it does not direct them, that pledges the public credit, that declares war, that defines offenses against the law of nations, that regulates foreign commerce; and it has the further power "to make all laws which shall be necessary and proper"--that is, which _it_ deems to be such--for carrying into execution not only its own powers but all the powers "of the government of the United States and of any department or officer thereof."

Moreover, its laws made "in pursuance" of these powers are "supreme law of the land" and the President is bound const.i.tutionally to "take care that" they "be faithfully executed." In point of fact, Congressional legislation has operated to augment Presidential powers in the foreign field much more frequently than it has to curtail them. The Lend-Lease Act of March 11, 1941[354] is the cla.s.sic example, although it only brought to culmination a whole series of enactments with which Congress had aided and abetted the administration's foreign policy in the years between 1934 and 1941.[355]

THE DOCTRINE OF POLITICAL QUESTIONS

It is not within the province of the courts to inquire into the policy underlying action taken by the "political departments"--Congress and the President--in the exercise of their conceded powers. This commonplace maxim is, however, sometimes given an enlarged application so as to embrace questions as to the existence of facts and even questions of law which the Court would normally regard as falling within its jurisdiction. Such questions are termed "political questions," and are especially common in the field of foreign relations. The leading case is Foster _v._ Neilson,[356] where the matter in dispute was the validity of a grant made by the Spanish Government in 1804 of land lying to the east of the Mississippi River, involved with which question was the further one whether the region between the Perdido and Mississippi Rivers belonged in 1804 to Spain or the United States. Chief Justice Marshall held that the Court was bound by the action of the political departments, the President and Congress, in claiming the land for the United States. He said: "If those departments which are intrusted with the foreign intercourse of the nation, which a.s.sert and maintain its interests against foreign powers, have unequivocally a.s.serted its right of dominion over a country of which it is in possession, and which it claims under a treaty; if the legislature has acted on the construction thus a.s.serted, it is not in its own courts that this construction is to be denied. A question like this, respecting the boundaries of nations, is, as has been truly said, more a political than a legal question, and in its discussion, the courts of every country must respect the p.r.o.nounced will of the legislature."[357] The doctrine thus clearly stated is further exemplified, with particular reference to Presidential action, by Williams _v._ The Suffolk Insurance Company.[358] In this case the underwriters of a vessel which had been confiscated by the Argentine Government for catching seals off the Falkland Islands contrary to that government's orders sought to escape liability by showing that the Argentinian government was the sovereign over these islands and that, accordingly, the vessel had been condemned for wilful disregard of legitimate authority. The Court decided against the company on the ground that the President had taken the position that the Falkland Islands were not a part of Argentina. It said: "Can there be any doubt, that when the executive branch of the government, which is charged with our foreign relations, shall, in its correspondence with a foreign nation, a.s.sume a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department? And in this view, it is not material to inquire, nor is it the province of the court to determine, whether the executive be right or wrong. It is enough to know, that in the exercise of his const.i.tutional functions, he had decided the question. Having done this, under the responsibilities which belong to him, it is obligatory on the people and government of the Union. If this were not the rule, cases might often arise, in which, on most important questions of foreign jurisdiction, there would be an irreconcilable difference between the executive and judicial departments. By one of these departments, a foreign island or country might be considered as at peace with the United States; whilst the other would consider it in a state of war. No well-regulated government has ever sanctioned a principle so unwise, and so destructive of national character."[359] Thus the right to determine the boundaries of the country is a political function;[360] as is also the right to determine what country is sovereign of a particular region;[361] to determine whether a community is ent.i.tled under International Law to be considered a belligerent or an independent state;[362] to determine whether the other party has duly ratified a treaty;[363] to determine who is the _de jure_ or _de facto_ ruler of a country;[364] to determine whether a particular person is a duly accredited diplomatic agent to the United States;[365] to determine how long a military occupation shall continue in fulfillment of the terms of a treaty;[366] to determine whether a treaty is in effect or not, although doubtless an extinguished treaty could be const.i.tutionally renewed by tacit consent.[367]

Recent Statements of the Doctrine

The a.s.sumption underlying the refusal of courts to intervene in such cases is well stated in the recent case of Chicago & S. Airlines _v._ Waterman Steams.h.i.+p Corp.[368] Here the Court refused to review orders of the Civil Aeronautics Board granting or denying applications by citizen carriers to engage in overseas and foreign air transportation which by the terms of the Civil Aeronautics Act[369] are subject to approval by the President and therefore impliedly beyond those provisions of the act authorizing judicial review of board orders.[370] Elaborating on the necessity of judicial abstinence in the conduct of foreign relations, Justice Jackson declared for the Court: "The President, both as Commander in Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit _in camera_ in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial.

Such decisions are wholly confided by our Const.i.tution on the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither apt.i.tude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry."[371]

To the same effect are the Court's holding and opinion in Ludecke _v._ Watkins,[372] where the question at issue was the power of the President to order the deportation under the Alien Enemy Act of 1798 of a German alien enemy after the cessation of hostilities with Germany. Said Justice Frankfurter for the Court: "War does not cease with a cease-fire order, and power to be exercised by the President such as that conferred by the Act of 1798 is a process which begins when war is declared but is not exhausted when the shooting stops. * * * The Court would be a.s.suming the functions of the political agencies of the Government to yield to the suggestion that the unconditional surrender of Germany and the disintegration of the n.a.z.i Reich have left Germany without a government capable of negotiating a treaty of peace. It is not for us to question a belief by the President that enemy aliens who were justifiably deemed fit subjects for internment during active hostilities do not lose their potency for mischief during the period of confusion and conflict which is characteristic of a state of war even when the guns are silent but the peace of Peace has not come. These are matters of political judgment for which judges have neither technical competence nor official responsibility."[373]

The President as Law Enforcer

TYPES OF EXECUTIVE POWER

The Const.i.tution does not say that the President shall execute the laws, but that "he shall take care that the laws be faithfully executed,"

i.e., by others, who are commonly, but not always with strict accuracy, termed his subordinates. What powers are implied from this duty? In this connection five categories of executive power should be distinguished: first, there is that executive power which the Const.i.tution confers directly upon the President by the opening clause of article II and, in more specific terms, by succeeding clauses of the same article; secondly, there is the sum total of the powers which acts of Congress at any particular time confer upon the President; thirdly, there is the sum total of discretionary powers which acts of Congress at any particular time confer upon heads of departments and other executive ("administrative") agencies of the National Government; fourthly, there is the power which stems from the duty to enforce the criminal statutes of the United States; finally, there are so-called "ministerial duties"

which admit of no discretion as to the occasion or the manner of their discharge. Three princ.i.p.al questions arise: first, how does the President exercise the powers which the Const.i.tution or the statutes confer upon him; second, in what relation does he stand by virtue of the "take care" clause to the powers of other executive, or administrative agencies; third, in what relation does he stand to the enforcement of the criminal laws of the United States?

HOW THE PRESIDENT'S OWN POWERS ARE EXERCISED

Whereas the British monarch is const.i.tutionally under the necessity of acting always through agents if his acts are to receive legal recognition, the President is presumed to exercise certain of his const.i.tutional powers personally. In the words of an opinion by Attorney General Cus.h.i.+ng in 1855: "It may be presumed that he, the man discharging the presidential office, and he alone, grants reprieves and pardons for offences against the United States, * * * So he, and he alone, is the supreme commander in chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States. That is a power const.i.tutionally inherent in the person of the President. No act of Congress, no act even of the President himself, can, by const.i.tutional possibility, authorize or create any military officer not subordinate to the President."[374] Moreover, the obligation to act personally may be sometimes enlarged by statute, as, for example, by the act organizing the President with other designated officials into "an Establishment by name of the Smithsonian Inst.i.tute."[375] Here, says the Attorney General, "the President's name of office is _designatio personae_." He is also of opinion that expenditures from the "secret service" fund in order to be valid, must be vouched for by the President personally.[376]

On like grounds the Supreme Court once held void a decree of a court martial, because, though it has been confirmed by the Secretary of War, it was not specifically stated to have received the sanction of the President as required by the 65th Article of War.[377] This case has, however, been virtually overruled, and at any rate such cases are exceptional.[378]

The general rule, as stated by the Court, is that when any duty is cast by law upon the President, it may be exercised by him through the head of the appropriate department, whose acts, if performed within the law, thus become the President's acts.[379] In Williams _v._ United States[380] was involved an act of Congress, which prohibited the advance of public money in any case whatever to disbursing officers of the United States, except under special direction by the President.[381]

The Supreme Court held that the act did not require the personal performance by the President of this duty. Such a practice, said the Court, if it were possible, would absorb the duties of the various departments of the government in the personal acts of one chief executive officer, and be fraught with mischief to the public service.

The President's duty in general requires his superintendence of the administration; yet he cannot be required to become the administrative officer of every department and bureau, or to perform in person the numerous details incident to services which, nevertheless, he is, in a correct sense, by the Const.i.tution and laws required and expected to perform.[382] As a matter of administrative practice, in fact, most orders and instructions emanating from the heads of the departments, even though in pursuance of powers conferred by statute on the President, do not even refer to the President.[383]

POWER AND DUTY OF THE PRESIDENT IN RELATION TO SUBORDINATE EXECUTIVE OFFICERS

Suppose, that the law casts a duty upon a head of department _eo nomine_, does the President thereupon become ent.i.tled by virtue of his duty to "take care that the laws be faithfully executed," to subst.i.tute his own judgment for that of the princ.i.p.al officer regarding the discharge of such duty? In the debate in the House in 1789 on the location of the removal power Madison argued that it ought to be attributed to the President alone because it was "the intention of the Const.i.tution, expressed especially in the faithful execution clause, that the first magistrate should be responsible for the executive department"; and this responsibility, he held, carried with it the power to "inspect and control" the conduct of subordinate executive officers.

"Vest," said he, "the power [of removal] in the Senate jointly with the President, and you abolish at once the great principle of unity and responsibility in the executive department, which was intended for the security of liberty and the public good."[384] But this was said with respect to the office of Secretary of State; and when shortly afterward the question arose as to the power of Congress to regulate the tenure of the Comptroller of the Treasury, Madison a.s.sumed a very different att.i.tude, conceding in effect that this officer was to be an arm of certain of Congress's own powers, and should therefore be protected against the removal power.[385] (_See_ p. 458). And in Marbury _v._ Madison,[386] Chief Justice Marshall traced a parallel distinction between the duties of the Secretary of State under the original act which had created a "Department of Foreign Affairs" and those which had been added by the later act changing the designation of the department to its present one. The former were, he pointed out, entirely in the "political field," and hence for their discharge the Secretary was left responsible absolutely to the President. The latter, on the other hand, were exclusively of statutory origin and sprang from the powers of Congress. For these, therefore, the Secretary was "an officer of the law" and "amenable to the law for his conduct."[387]

ADMINISTRATIVE DECENTRALIZATION VERSUS JACKSONIAN CENTRALISM

An opinion rendered by Attorney General Wirt in 1823 a.s.serted the proposition that the President's duty under the "take care" clause required of him scarcely more than that he should bring a criminally negligent official to book for his derelictions, either by removing him or by setting in motion against him the processes of impeachment or of criminal prosecution.[388] The opinion entirely overlooked the important question of the location of the power to interpret the law which is inevitably involved in any effort to enforce it. The diametrically opposed theory that Congress is unable to vest any head of an executive department, even within the field of Congress's specifically delegated powers, with any legal discretion which the President is not ent.i.tled to control was first a.s.serted in unambiguous terms in President Jackson's Protest Message of April 15, 1834,[389]

defending his removal of Duane as Secretary of the Treasury, on account of the latter's refusal to remove the deposits from the Bank of the United States. Here it is a.s.serted "that the entire executive power is vested in the President"; that the power to remove those officers who are to aid him in the execution of the laws is an incident of that power; that the Secretary of the Treasury was such an officer; that the custody of the public property and money was an executive function exercised through the Secretary of the Treasury and his subordinates: that in the performance of these duties the Secretary was subject to the supervision and control of the President: and finally that the act establis.h.i.+ng the Bank of the United States "did not, as it could not change the relation between the President and Secretary--did not release the former from his obligation to see the law faithfully executed nor the latter from the President's supervision and control."[390] In short, the President's removal power, in this case unqualified, was the sanction provided by the Const.i.tution for his power and duty to control his "subordinates" in all their official actions of public consequence.

CONGRESSIONAL POWER VERSUS PRESIDENTIAL DUTY TO THE LAW

Five years later the case of Kendall _v._ United States[391] arose. The United States owed one Stokes money, and when Postmaster General Kendall, at Jackson's instigation, refused to pay it, Congress pa.s.sed a special act ordering payment. Kendall, however, still proved noncompliant, whereupon Stokes sought and obtained a mandamus in the United States circuit court for the District of Columbia, and on appeal this decision was affirmed by the Supreme Court. While Kendall _v._ United States, like Marbury _v._ Madison, involved the question of the responsibility of a head of department for the performance of a _ministerial_ duty, the discussion by counsel before the Court and the Court's own opinion covered the entire subject of the relation of the President to his subordinates in the performance by them of statutory duties. The lower court had a.s.serted that the duty of the President under the faithful execution clause gave him no other control over the officer than to see that he acts honestly, with proper motives, but no power to construe the law, and see that the executive action conforms to it. Counsel for Kendall attacked this position vigorously, relying largely upon statements by Hamilton, Marshall, James Wilson, and Story having to do with the President's power in the field of foreign relations. The Court rejected the implication with emphasis. There are, it pointed out, "certain political duties imposed upon many officers in the executive department, the discharge of which is under the direction of the President. But it would be an alarming doctrine, that Congress cannot impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the Const.i.tution; and in such cases the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the President. And this is emphatically the case, where the duty enjoined is of a mere ministerial character."[392] In short, the Court recognized the underlying question of the case to be whether the President's duty to "take care that the laws be faithfully executed"

made it const.i.tutionally impossible for Congress ever to entrust the construction of its statutes to anybody but the President; and it answered this in the negative.

MYERS CASE VERSUS HUMPHREY CASE

How does this issue stand today? The answer to this question, so far as there is one, is to be sought in a comparison of the Court's decisions in the Myers and Humphrey cases respectively.[393] The former decision is still valid to support the President's right to remove, and hence to control the decisions of, all officials through whom he exercises the great political powers which he derives from the Const.i.tution; also all officials--usually heads of departments--through whom he exercises powers conferred upon him by statute. The Humphrey decision a.s.sures to Congress the right to protect the tenure, and hence the freedom of decision of all officials upon whom, in the exercise of its delegated powers, it confers duties of a "quasi-legislative" or a "quasi-judicial"

nature. The former may be described as duties for the satisfactory discharge of which Congress justifiably feels that a specialized and informed judgment is requisite. The latter are duties the discharge of which closely touches private rights and which ought therefore be accompanied or preceded by a "quasi-judicial" inquiry capable of affording the claimants of such rights the opportunity to be heard. In neither case is the President ent.i.tled to force his reading of the law upon the officer, but only to take care that the latter exercise his powers according to his own best lights.

POWER OF THE PRESIDENT TO GUIDE ENFORCEMENT OF THE PENAL LAW

This matter also came to a head in "the reign of Andrew Jackson,"

preceding, and indeed foreshadowing, the Duane episode by some months.

"At that epoch," Wyman relates in his Principles of Administrative Law, "the first announcement of the doctrine of centralism in its entirety was set forth in an obscure opinion upon an unimportant matter--The Jewels of the Princess of Orange, 2 Opin. 482 (1831). These jewels * * *

were stolen from the Princess by one Polari, and were seized by the officers of the United States Customs in the hands of the thief.

Representations were made to the President of the United States by the Minister of the Netherlands of the facts in the matter, which were followed by request for return of the jewels. In the meantime the District Attorney was prosecuting condemnation proceedings in behalf of the United States which he showed no disposition to abandon. The President felt himself in a dilemma, whether if it was by statute the duty of the District Attorney to prosecute or not, the President could interfere and direct whether to proceed or not. The opinion was written by Taney, then Attorney-General; it is full of pertinent ill.u.s.trations as to the necessity in an administration of full power in the chief executive as the concomitant of his full responsibility. It concludes: If it should be said that, the District Attorney having the power to discontinue the prosecution, there is no necessity for inferring a right in the President to direct him to exercise it--I answer that the direction of the President is not required to communicate any new authority to the District Attorney, but to direct him in the execution of a power he is admitted to possess. The most valuable and proper measure may often be for the President to order the District Attorney to discontinue prosecution. The District Attorney might refuse to obey the President's order; and if he did refuse, the prosecution, while he remained in office, would still go on; because the President himself could give no order to the court or to the clerk to make any particular entry. He could only act through his subordinate officer the District Attorney, who is responsible to him and who holds his office at his pleasure. And if that officer still continue a prosecution which the President is satisfied ought not to continue, the removal of the disobedient officer and the subst.i.tution of one more worthy in his place would enable the President through him faithfully to execute the law.

And it is for this among other reasons that the power of removing the District Attorney resides in the President."[394]

THE PRESIDENT AS LAW INTERPRETER

The power accruing to the President from his function of law interpretation preparatory to law enforcement is daily ill.u.s.trated in relation to such statutes as the Anti-Trust Acts, the Taft-Hartley Act, the Internal Security Act, and many lesser statutes. Nor is this the whole story. Not only do all Presidential regulations and orders based on statutes which vest power in him or on his own const.i.tutional powers have the force of law, provided they do not transgress the Court's reading of such statutes or of the Const.i.tution,[395] but he sometimes makes law in a more special sense. In the famous Neagle case[396] an order of the Attorney General to a United States marshal to protect a Justice of the Supreme Court whose life had been threatened by a suitor was attributed to the President and held to be "a law of the United States" in the sense of section 753 of the Revised Statutes, and as such to afford basis for a writ of _habeas corpus_ transferring the said marshal, who had "got his man," from State to national custody. Speaking for the Court, Justice Miller inquired: "Is this duty [the duty of the President to take care that the laws be faithfully executed] limited to the enforcement of acts of Congress or of treaties of the United States according to their _express terms_, or does it include the rights, duties and obligations growing out of the Const.i.tution itself, our international relations, and all the protection implied by the nature of the government under the Const.i.tution?"[397] Obviously, an affirmative answer is a.s.sumed to the second branch of this inquiry, an a.s.sumption which is borne out by numerous precedents. And in United States _v._ Midwest Oil Company[398] it was ruled that the President had, by dint of repeated a.s.sertion of it from an early date, acquired the right to withdraw, via the Land Department, public lands, both mineral and nonmineral, from private acquisition, Congress having never repudiated the practice.

MILITARY POWER IN LAW ENFORCEMENT: THE POSSE COMITATUS

"Whenever, by reason of unlawful obstructions, combinations, or a.s.semblages of persons, or rebellion against the authority of the Government of the United States, it shall become impracticable, in the judgment of the President, to enforce, by the ordinary course of judicial proceedings, the laws of the United States within any State or Territory, it shall be lawful for the President to call forth the militia of any or all the States, and to employ such parts of the land and naval forces of the United States as he may deem necessary to enforce the faithful execution of the laws of the United States, or to suppress such rebellion, in whatever State or Territory thereof the laws of the United States may be forcibly opposed, or the execution thereof forcibly obstructed."[399] This provision of the United States Code consolidates a course of legislation which began at the time of the Whiskey Rebellion of 1792.[400] In Martin _v._ Mott,[401] which arose out of the War of 1812, it was held that the authority to decide whether the exigency has arisen belongs exclusively to the President.[402] Even before that time, Jefferson had in 1808, in the course of his efforts to enforce the Embargo Acts, issued a proclamation ordering "all officers having authority, civil or military, who shall be found in the vicinity"

of an unruly combination to aid and a.s.sist "by all means in their power, by force of arms and otherwise" the suppression of such combination.[403] Forty-six years later Attorney General Cus.h.i.+ng advised President Pierce that in enforcing the Fugitive Slave Act of 1850, marshals of the United States, had authority when opposed by unlawful combinations, to summon to their aid not only bystanders and citizens generally, but armed forces within their precincts, both State militia and United States officers, soldiers, sailors, and marines,[404] a doctrine which Pierce himself improved upon two years later by a.s.serting, with reference to the civil war then raging in Kansas, that it lay within his obligation to take care that the laws be faithfully executed to place the forces of the United States in Kansas at the disposal of the marshal there, to be used as a portion of the _posse comitatus_. Lincoln's call of April 15, 1861, for 75,000 volunteers was, on the other hand, a fresh invocation, though of course on a vastly magnified scale, of Jefferson's conception of a _posse comitatus_ subject to Presidential call.[405] The provision above extracted from the United States Code ratifies this conception as regards the State militias and the national forces.