WRIGHT— LIMITATIONS UPON NATIONAL POWERS. 193 



delegated to another organ or give away a power so delegated to 

 itself. ^^ But it is sometimes contended, that in addition, one organ 

 cannot so exercise its own powers as to limit the discretion of 

 another organ or of itself in the future exercise of its powers. 

 These two interpretations are very different and much misconcep- 

 tion has arisen from their confusion. Thus for the treaty power 

 to provide that in defined circumstances the United States would 

 automatically be at war, would be a clear invasion of the power 

 of Congress to declare war. On the other hand for the treaty 

 power to provide that in defined circumstances the United States 

 would declare war, would not invade the power of Congress but 

 would merely limit its discretion in the future exercise of this power. 

 In certain circumstances the practical efifect might be the same, but 

 the legal difiference would nevertheless exist. It appears that 

 constitutional law merely guarantees to each organ continued pos- 

 session of its delegated powers. The degree of discretion which 

 the organ may actually enjoy in exercising these powers depends 

 largely upon constitutional understandings. 



55. Prohibition upon Exercise of Uncharacteristic Power by Any 

 Department. 

 Each department is prohibited from "exercising powers (not 

 inherent or expressly delegated) which from their essential nature 

 do not fall within its division of governmental functions}^ Thus 

 Congress cannot exercise such judicial powers as punishing for 

 contempt unless necessary for performing its legislative functions,^' 

 nor such executive powers as directing the detailed movement of 

 troops^® or appointing ofificers.^^ The courts cannot exercise such 



^3 Legislative power cannot be delegated even by the legislature itself, 

 but the Constitution gives considerable power to Congress over the deter- 

 mination of executive and judicial competence. Infra, sec. 60. But see 

 Goodnow, op. cit., p. 41. 



1* Willoughby, op. cit., p. 1263. 



^5 Kilbourn v. Thompson, 103 U. S. 168. Nor can Congress exercise ju- 

 dicial power by deciding specific cases involving private rights, Willoughby, 

 op. cit., p. 1264. 



1^ Ex parte Milligan, 4 Wall. 2, Willoughby, op. cit., p. 1207. 



1'^ Constitution, II, sec. 2. Congress, however, has the inherent power to 

 appoint subordinate officers necessary for the conduct of its internal busi- 

 ness, Goodnow, op. cit., p. 38. 



