The Green Bagfore beyond the competence of the executive, and beyond the power of Congress to dele gate? Second, if they are constitutional be cause not acts of legislation, are they rules of law which will be enforced by the judicial courts, or is their enforcement secured only by administrative processes? On the first question, Federal judges have held, on the one hand, that Congress may delegate the power to make rules and regu lations, and, on the other hand, that this does not constitute a delegation of legislative power. These views would seem' to be logically inconsistent with each other; and the inconsistency is not removed by pointing out the difficulty of drawing the line between legiblativve action and executive discretion. For Congress possesses only legislative power, and it would seem that any delegation of power by Congress must be a delegation of legislative power. If this view is correct, statutory au thorizations of executive regulations are either a grant of legislative power, or they are not grants of power, but merely expres sions of opinion by Congress that the details left for executive regulation are not legis lative in character. In some cases Congress has authorized executive regulations which approach very closely the field of legislative action. The most notable instance is in the reciprocity clause of the tariff act of 1890, which author ized the President to suspend other clauses of the act permitting the importation of cer tain commodities free of duties, with refer ence to goods imported from countries which imposed duties on American products deemed by the President to be reciprocally unequal and unreasonable. By this provision the imposition of duties was made to depend on the action of the President. The opinion of the Supreme Court as to the constitution ality of this power, in the case of Field v. Clark, discusses previous instances of some what similar provisions, while the dissenting opinion of two judges serves to emphasize the point at issue. It was shown that there were numerous
instances where Congress had authorized the President to suspend the operation of certain statutes, under given conditions, and some cases where more positive authority had been conferred. The acts which gave the greatest extent of discretionary power to the Presi dent were the Embargo Act of 1794, and the Non-Intercourse Act of 1799. The former authorized the President to lay an embargo on shipping "whenever, in his opinion, the public safety shall so require." The latter authorized the President to remit and dis continue the restrictions placed by the act on commercial intercourse "if he shall deem it expedient and consistent with the interest of the United States." These and other acts were cited as showing the Congressional in terpretation of the question. But the only act of this kind which had received judicial recognition was the Non-Intercourse Act of 1809, which authorized the resumption of trade when the President by proclamation de clared that France or Great Britain had re voked or modified the edicts violating the neutral commerce of the United States. This act was upheld by the Supreme Court on the ground that the act of the President merely announced the condition or fact which the Legislature prescribed as necessary to the re sumption of trade. Following this precedent, the majority of the court held that the clause in the act of 1890 also left to the President simply the determination of a fact or contingency upon which the suspension of free importation was to take effect. . . . From this opinion Justice Lámar and Chief Justice Fuller dissented. It was urged that the legislative precedents could not bind the judiciary in interpreting the Constitu tion; and that the provision under consider ation differed radically from that in the Non-Intercourse Act of 1809. . . . It will be noted that the difference of opinion was as to whether the powers con ferred were legislative or not; and the view of the majority of the court throws open a wide field for delegated executive regula tions. But the entire court accepted the view
