RELATIONS OF INDEPENDENT DEPARTMENTS. 423 



A. The Overlapping of Povjers of Independent Departments. 



245. Constitutional Understanding Respecting the Overlapping of 

 Powers. 



The difficulty arising from the overlapping of the powers of two 

 independent and coordinate departments of the government has 

 been met in part by the legal principle that the most recent exercise 

 of power prevails and in part by the understanding that each de- 

 partment should so exercise its concurrent powers as not to impair 

 the validity of action already taken by the other department with- 

 out that department's consent. 



246. Concurrent Pozvcrs of President and Congress. 



The powers of the President or of the courts cannot conflict 

 with those of Congress or the treaty-making power, because the 

 constitutional acts of the latter are declared the supreme law of 

 the land. Consequently, a conflicting act of the President or the 

 courts would be contrary to law and void. The President and 

 courts, however, have certain powers concurrent with congressional 

 powers in the sense that they may validly act, until Congress has 

 acted. Thus the Supreme Court could determine its appellate juris- 

 diction upon the basis of Article III of the Constitution alone,^ 

 and the President could organize and conduct military government 

 in newly acquired territory, regulate the landing of cables, and 

 issue regulations for branches of the civil service before Congress 

 had acted. ^ But once Congress, or the treaty-making power, has 

 acted, if its act is constitutional, there is no doubt but" that it is the 

 supreme law of the land, and the President and courts are hence- 

 forth bound by it.*' An act either of Congress or of the treaty-mak- 



* Ex parte McCardle, 7 Wall. 506, 513, and Marshall, C. J., in Durousseau 

 V. U. S., 6 Cranch 307, 313, and U. S. v. Moore, 3 Cranch 159, 170, 172. 



"Santiago v. Nogueras, 214 U. S. 260; Richards, Acting Att. Gen., 22 

 Op. 13 ; Moore, Digest, 2 : 452-463 ; supra, sec. 219. 



'Where two organs enjoy concurrent powers to produce a status, the one 

 acting first, of course, eflfects the result. Thus a presidential recognition of 

 ■war would be effective irrespective of subsequent acts of Congress. " In 

 short, it frequently happens that the same legal result may be produced by 

 very different powers of government; nor need the fact lead to confusion, 

 since, as soon as any of the competent powers has acted, the result is pro- 

 duced." Corwin, Mich. Law Rev., 18: 672, but see his President's Control 

 of Foreign Relations, p. 36. 



