The doctrine thus declared is without objection so long as the facts which are to determine the executive acts are such as may be precisely stated by the legislature and certainly ascertained by the executive. When this is not so, the officer intrusted with the execution of the law is necessarily vested with an independent judgment as to when and how the law shall be executed; and when this independence of judgment is considerable there is ground for holding that the law is not simply one in presenti to take effect in futuro, but is a delegation by the law-making body of its legislative discretion. This was one of the points especially urged in the leading case of Field v. Clark.5 By the third section of the Tariff Act of October 1, 1890, it was provided that, with a view to securing reciprocal trade, "whenever and so often as the President shall be satisfied that the government of any country producing and exporting sugars, molasses, coffee, tea, and hides, raw and uncured, or any of such articles, imposes duties or other exactions upon the agricultural or other products of the United. States, which in view of the free introduction of such sugar, molasses, coffee, tea and hides into the United States, he may deem to be reciprocally unequal and unreasonable, he shall have the power, and it shall be his duty to suspend, by proclamation to that effect, the provisions of this act relating to the free introduction of such sugar, molasses, coffee, tea and hides, the production of such country, for such time as he shall deem just."
4 Quoted and approved in Field v. Clark, 143 U. S. 649; 12 Sup. Ct. Rep. 495; 36 L. ed. 294.
5 143 U. S. 649; 12 Sup. Ct. Rep. 495; 36 L. ed. 294.
The provision which has been quoted, it was argued, exhibited an endeavor on the part of Congress to vest in the President an unconstitutional discretionary power as to when certain taxes should and when they should not be levied and collected. The Supreme Court, however, upheld the grant of power, saying, with reference to the provision in question: "It does not in any real sense, invest the President with the power of legislation. . . . Congress itself prescribed in advance, the duties to be levied, collected and paid, on sugar, molasses, coffee, tea, produced by or exported from such designated country, while the suspension lasted. Nothing involving the expediency or the just operation of such legislation was left to the determination of the President. The words, 'he may deem' in the third section, of course, implied that the President would examine the commercial regulations of other countries producing and exporting sugar, molasses, coffee, tea, and hides, and from a judgment as to whether they were reciprocally equal and reasonable, or the contrary, in their effect upon American products. But when he ascertained the fact that duties and exactions, reciprocally unequal and unreasonable, were imposed upon the agricultural or other products of the United States by a country producing and exporting sugar, molasses, coffee, tea or hides, it became his duty to issue a proclamation declaring the suspension, as to that country, which Congress had determined should occur. He had no discretion in the premises except in respect to the duration of the suspension so ordered. But that related only to the enforcement of the policy established by Congress. . . . 'The true distinction,' as Judge Ranney, speaking for the Supreme Court of Ohio, has well said, 'is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made, Cincinnati, W. & Z. B. Co. v. Clinton County Comrs., 1 Ohio St. 88.' "