On the other hand, the presumption is always against Congress, and to show that it can legislate, some positive grant of power to Congress in the Constitution must be pointed out.[1] When the grant is shown, then the Act of Congress has, so long as it remains on the statute book, all the force of the Constitution itself. In some instances the grant of power to Congress to legislate is auxiliary to a prohibition imposed on the States. This is notably the case as regards the amendments to the Constitution, passed for the protection of the lately liberated negroes. They interdict the States from either recognizing slavery, or discriminating in any way against any class of citizens; they go even beyond citizens in their care, and declare that "no State shall deny to any person within its jurisdiction the equal protection of the laws." Now, by each of these amendments, Congress is also empowered, which practically means enjoined, to "enforce by appropriate legislation" the prohibitions laid upon the States. Congress has done so, but some of its efforts have been held to go beyond the directions of the amendments, and to be therefore void.[2] The grant of power has not covered them.
Where the President interferes with a State, he does so either under his duty to give effect to the legislation of Congress, or under the discretionary executive functions which the Constitution has entrusted to him. So if any State were to depart from a republican form of government, it would be his duty to bring the fact to the notice of Congress in order that the guarantee of that form contained in the Constitution might be made effective. If an insurrection broke out against the authority of the Union, he would (as in 1861) send Federal troops to suppress it. If there should be rival State governments, each claiming to be legitimate, the President might, especially if Congress were not sitting, recognize and support the one which he deemed regular and constitutional.[3]
- ↑ The grant need not, however, be express, for it has frequently been held that a power incidental or instrumental to a power expressly given may be conferred upon Congress by necessary implication. See M'Culloch v. Maryland, 4 Wheat, p. 316, and post, Chapter XXXIII.
- ↑ See the Appendix to the last edition of Story's Commentaries, and Desty's Constitution of the United States Annotated.
- ↑ In 1874-75 a contest having arisen in Louisiana between two governments each claiming to be the legal government of the State, Federal military aid was supplied to one of them by the President, and his action was afterwards
