4495. LAW, Executive discretion and.—
There are cases in the books where the word
“may” has been adjudged equivalent to
“shall”, but the term “is authorized” unless
followed by “and required” was, I
think, never so considered. On the contrary,
I believe it is the very term which Congress
always use towards the Executive when they
mean to give a power to him, and leave the
use of it to his discretion. It is the very
phrase on which there is now a difference
in the House of Representatives, on the bill
for raising 6,000 regulars, which says, “there
shall be raised”, and some desire it to say,
“the President is authorized to raise”, leaving
him the power with a discretion to use it
or not.—
To Albert Gallatin. Washington ed. v, 259.
(W.
March. 1808)
