Government in the United States, National, State and Local Part 24

=Extent of the President's Powers.=--The powers of the President are partly conferred by the Const.i.tution, partly by acts of Congress and treaties, and are partly the result of usage and precedent. The power which has been wielded at any given time, however, has depended upon the initiative and force of the President and the extent to which he enjoyed the confidence of Congress and the people. Again, the power which may be rightfully exercised depends upon the state of affairs under which the office is administered. In time of war the power of the President may be so expanded as to be limited in effect only by the necessities of the national existence. The powers wielded by President Lincoln during the Civil War were so great as to cause him to be frequently referred to as a dictator. After the outbreak of the war with Germany in 1917 vast and unprecedented powers were conferred on President Wilson by a succession of far-reaching acts of Congress. Among the extraordinary powers thus conferred on him were: the control of the manufacture and distribution of commodities needful for war purposes, the requisition of ships and other war supplies, the fixing of prices of coal, wheat, sugar, steel, and various other commodities, the taking over and operation of private ship-building plants, the closing of liquor distilleries and the seizure of their stocks, the prohibition of exports to foreign countries, the seizure of German ships in American ports, the making of regulations in respect to the treatment of enemy aliens, and the taking over and operation of railroads, telegraphs, and telephones.

=Cla.s.ses of Powers.=--The various powers and duties which have been conferred on the President by the Const.i.tution and the laws may be grouped under the following heads:

1. The power and duty of executing the laws, including the power to appoint, direct, and remove public officers.

2. The management of the foreign affairs of the country.

3. The power to command the army and navy.

4. Legislative powers, including the sending of messages to Congress, the calling of extra sessions, and especially the power to veto acts of Congress.

5. The power to grant pardons for offenses against the laws of the United States.

=Execution of the Laws.=--The President is the head of the executive branch of the government, and it is his duty to see that the Const.i.tution is preserved, protected, and defended, and that the laws enacted in pursuance thereof, the treaties made under its authority, and the decisions rendered by the federal courts are enforced throughout the United States. For these purposes the army, the navy, and the militia are at his disposal, and in case of resistance to the laws and authority of the United States, they may be employed by him in such manner as he may direct, to overcome such resistance. Moreover, nearly all the civil and military officers of the United States are appointed by him and are, to a large degree, subject to his direction.

_The President's Responsibility._--Unlike the state governments, the national government is so organized as to concentrate the power and the responsibility for the enforcement of the laws in the hands of a single executive. Those who are charged with aiding him in carrying out the government are his own appointees, and their responsibility is primarily to him alone.

=Power of Appointment.=--The Const.i.tution declares that the President shall, with the "advice and consent" of the senate, appoint all officers of the United States whose appointment is not otherwise provided for by the Const.i.tution, except that Congress may vest the appointment of inferior officers in the President alone, in the courts of law, or in the heads of departments.[76] This is one of the most important powers devolving upon the President, and probably consumes more of his time than all his other duties together. In the early days of the Const.i.tution, the number of appointments was small, but as the government service expanded, the number of offices to be filled steadily increased until there are now about 11,000 important presidential offices, that is, offices filled by the President and the senate. The tenure of office act of 1820 fixed the terms of the great bulk of federal offices at four years, and even where the term is not prescribed by statute, it is the custom for most appointees to be replaced at the expiration of four years, so that in practice the four-year tenure is universal, except for federal judges, and each President must during his term make appointments to nearly all the presidential offices. In making these appointments he is not limited by any const.i.tutional or statutory requirements in regard to qualifications. He is the sole judge of the fitness of candidates for appointments. The only limitation upon his power is the necessity of securing the approval of the senate, a requirement already discussed in chapter x, pages 190-191.

[76] The only officers appointed by the courts of law are clerks, reporters, and other minor ministerial officers; but there are a large number of inferior officers in the various departments who are appointed by the heads of departments.

_Appointments to Minor Positions_ are often made upon the recommendations of the representative in Congress from the district in which the office is located, though many such appointments are now made on the basis of examinations, under civil service rules. Obviously the President or the head of the department could not fill the thousands of minor positions of this sort without reliance upon the advice of others.

They cannot investigate personally every application for appointments of this kind. It is natural, therefore, that they should accept the recommendations of members of Congress, who are more apt to be acquainted with the qualifications of applicants in their districts, and who are familiar with local conditions.

=Power of Removal.=--While the Const.i.tution expressly authorizes the President to appoint officers, with the consent of the senate, it is completely silent on the question of whether he may remove an officer, either with or without the consent of the senate. The only provision in the Const.i.tution in regard to removal is that which relates to impeachment. It might, therefore, be contended that the only const.i.tutional method of depriving an inc.u.mbent of an office to which he has been appointed is by impeachment. But this process of removal is so c.u.mbersome and unwieldy that if it were the only means of getting rid of incompetent office-holders many unfit persons would remain in office indefinitely, and, besides, it would be impossible for the President, upon whom the responsibility for the enforcement of the laws rests, to surround himself with officials in whose integrity and fitness he has confidence. Moreover, to resort to the process of impeachment to remove a person from a petty inferior office would be very much like shooting birds with artillery intended for destroying battleships.

From the first, therefore, it was recognized that there was another process of removal than by impeachment. But there was a difference of opinion as to whether that power lay with the President alone, or whether he could remove only with the consent of the senate, as in the case of appointments; or whether the power lay with Congress to prescribe how removals might be made. The matter was threshed over in the first Congress after the Const.i.tution went into effect, and it was decided that the President might remove alone, without the necessity of securing the consent of the senate. But there was considerable fear that he might abuse the power, and Madison is said to have declared that the wanton removal of a meritorious officer would subject him to impeachment.

_Early Practice._--For a long time the power of removal was used sparingly. Several of the early Presidents, in fact, made no removals at all, and during the first forty years of our national existence the total number of officers removed probably did not exceed 100. With the incoming of President Jackson, however, what is known as the _spoils system_ was introduced; that is, large numbers of office-holders were removed in order to make places for those who had rendered political services to the party in power. Henceforth appointments were made largely as rewards for party service, often without regard to merit and fitness. Nevertheless, the right of the President to make removals for any cause that seemed to him proper, or for any cause whatsoever, continued to be recognized and acquiesced in by all parties until the breach occurred between President Johnson and Congress in 1867.

_Act of 1867._--The action of President Johnson in removing officials who were in sympathy with Congress greatly offended that body, and in 1867 a tenure of office act was pa.s.sed forbidding the President to make removals except with the consent of the Senate.[77] Thus the custom which for seventy-eight years had recognized the unlimited right of the President to remove officers without the necessity of securing the consent of the senate was now reversed. The violation of this law by President Johnson was the chief cause of his impeachment in 1868. With the incoming of President Grant, however, the law was modified, and in 1887 it was repealed. Thus after a brief interval the original interpretation was reverted to, and it has been followed ever since.

[77] While Congress was not in session, the President was to be allowed the right to "suspend" officers for good cause, but he was required to report all suspensions to the Senate at its next meeting and in case it refused to concur in the suspension, the suspended officer was to be allowed to resume his office.

_The Present Rule._--The right of the President to remove any federal officer appointed by him, except the judges, for any cause whatsoever, is now recognized, and Congress cannot abridge that right by prescribing the conditions under which removals may be made. His power in this respect is absolute and unlimited and may be employed for rewarding his political friends and punishing his enemies as well as for getting rid of incompetent and unfit persons in the public service.

=Power of Direction.=--Resulting from the power of removal is the power of the President to direct the officers whom he appoints, in regard to the discharge of their duties. Through the threat of removal, he may compel obedience to his orders, though of course he cannot require an officer to do an act which would amount to a violation of the law. Many of the duties of federal officers are prescribed by law, and the President cannot change these duties or require an officer to do his duty differently from the way in which the law requires him to do it.

But the law expressly recognizes that the President has the power to direct many officers as to their duties. Thus the secretary of state in the negotiation of treaties and the settlement of disputes with foreign countries is almost wholly under the control of the President. The President may instruct him to begin negotiations with a particular government or to cease negotiations, and the secretary must obey his orders. So the President may direct the secretary of war in regard to the disposition of the armed forces. In the same way he may order the attorney-general to prosecute a "trust" or inst.i.tute proceedings against any violator of the federal laws, or may direct him to drop proceedings once begun. Some officers, however, such as the secretary of the treasury and the postmaster-general, are less under the direction of the President, their duties being prescribed with more or less detail by acts of Congress.[78]

[78] The act organizing the treasury department requires the secretary of the treasury to make his annual report to Congress, while the other cabinet heads make their reports to the President. It was the evident intention of Congress to keep the secretary of the treasury more closely under the control of the representatives of the people.

=The Civil Service System.=--For a half century following the introduction of the spoils system by President Jackson, both parties acted on the principle that the offices of the federal government were the legitimate spoils of victory at the polls. Under such circ.u.mstances the public service was demoralized and enfeebled, and the time of the President and heads of the departments was taken up with considering applications for office when it should have been devoted to more important matters. After the Civil War, a movement was started which had for its purpose the establishment of the merit system in the public service and the elimination of the spoils system.

_The Civil Service Law of 1883._--The a.s.sa.s.sination of President Garfield in 1881 by a disappointed office seeker aroused public opinion to some of the worst evils of the existing system, and in obedience to the demands of public sentiment, Congress in 1883 enacted the civil service law which forms the basis of the present civil service system.

This law provided for the creation of a commission of three persons, not more than two of whom should belong to the same political party. The commission was charged with forming rules for making appointments to the public service, and with carrying out the provisions of the law.

_The Cla.s.sified Service._--The act provided for the cla.s.sification of the positions in the departments at Washington and in the customhouses and post offices where at least fifty persons were employed, and for the holding, under the supervision of the commission, of compet.i.tive examinations to test the fitness of applicants for appointments to positions in the cla.s.sified service. The cla.s.sified service now includes the departmental service at Washington, the customs service, the post office service, the railway mail service, the Indian service, the internal revenue service, and the government printing service.

_Extent of the Cla.s.sified Service._--At first the law applied to only about 14,000 positions, but since then the number has been increased from time to time by the creation of new offices and by orders of Presidents extending the rules to other cla.s.ses of positions. A large extension, for example, was made by President Cleveland in 1896.

President Roosevelt also made large extensions, so that when he went out of office there were about twice as many positions under the rules as there were when he became President. In 1912 President Taft added over 36,000 fourth-cla.s.s postmasters and 20,000 artisans employed in the navy yards; and in 1917 President Wilson placed 10,000 first-, second-, and third-cla.s.s postmasters under the rules. Of 517,805 officers and employees in the executive civil service in 1917, 326,899 were subject to compet.i.tive examination.

_Exempt Positions._--Among the positions not under the rules and for which compet.i.tive examinations are not required are the more important presidential offices such as cabinet officers, a.s.sistant secretaries, chiefs of bureaus, United States attorneys, marshals, judges, amba.s.sadors and ministers, besides a large number of minor officials like private secretaries. The income tax and currency acts of 1913 exempted from the operation of the civil service laws employees who collect the income tax and employees of the Federal Reserve Board. By an act of the same year deputy collectors of internal revenue and deputy marshals were withdrawn from the operation of the laws. These acts have been criticized by civil service reformers.

_Examinations._--Civil service examinations are held at least twice each year in every state and territory, and any citizen of the United States is eligible to take the examination for any position to be filled. The commission keeps a list of eligibles, that is, of persons who have pa.s.sed an examination, and whenever an appointment is to be made, it certifies to the appointing authority a list of those who are qualified, and from the three standing highest on the list the appointment must be made. But in making the appointments preference must be given to persons honorably discharged from the military or naval service by reason of their disability resulting from wounds or sickness. The examinations are required to be practical in character and of such a nature as to test, as far as possible, the capacity and fitness of the applicants to discharge the duties of the position for which they desire an appointment.

No appointment is permanent until after six months of probationary service, during which time the appointee must have demonstrated his capacity for the office. The law also prohibits members of Congress from making recommendations for appointments to positions in the cla.s.sified service except as to the character and residence of the applicant, and also forbids the levying of a.s.sessments on government employees for campaign purposes or the solicitation of contributions from employees.[79]

[79] By a law of 1907, employees in the cla.s.sified service are forbidden to take active part in political campaigns, and this prohibition has been construed to forbid service on political committees, service as delegates to party conventions, publication of newspaper articles of a political nature, membership in political clubs, circulation of pet.i.tions of a political character, etc.

_How Removals are Made._--When an appointment has been made in pursuance of the civil service rules, the appointee is protected from removal for political reasons. The rules now in force declare that removals from the compet.i.tive service can be made only for just cause and for reasons stated in writing, with an opportunity to the employee to be heard.

"Just cause" is defined as being any cause not merely political or religious, which will promote the efficiency of the service.

_The Effect_ of the compet.i.tive system has been to give the public service the character of permanency and increased efficiency. The administration may change at Washington, but the more than 200,000 officials under the civil service rules are not affected thereby. There is no longer a "clean sweep" at the beginning of every administration, no longer the demoralization that once characterized the government service when a new party came into power. Thus the whole tone of the public service has been improved, and the President and heads of the departments have been partly relieved from the burden of listening to the appeals of the army of office seekers who used to descend upon Washington at the beginning of every new administration.

=Management of Foreign Affairs.=--The United States as a leading member of the family of nations has an extensive intercourse with other countries. There is no nation with which it has not entered into relations of some kind or another. With every civilized country and some that are not civilized, we have one or more treaties regulating certain of our relations with them.

_How Treaties are Negotiated._--The President, by and with the advice and consent of the senate, two thirds of the members concurring, is charged with the negotiation of all treaties. The share of the senate in the negotiation of all treaties has already been discussed in chapter x.

The President usually does not conduct negotiations himself,[80] but acts through the secretary of state, who is a sort of minister of foreign affairs. The secretary is subject to his directions, however, and while conducting negotiations keeps the President fully informed of their progress, and secures his approval of all points which in his judgment should be submitted to him for an opinion. Foreign ministers at Washington who wish to discuss questions of foreign policy with the President are referred to the secretary, who is his responsible minister in such matters. Amba.s.sadors, ministers, and consuls of the United States are appointed by the President, though the approval of the senate is essential to the validity of the appointment. Diplomatic representatives sent abroad bear letters of credence signed by the President, and from time to time they are given instructions as to the action they shall take in negotiations with foreign governments. These instructions are prepared by the secretary of state, though in important cases he consults the President and ascertains his wishes in the matter. The President may transfer a minister from one post to another, may recall him, or dismiss him whenever he likes.

[80] In 1915-1919, however, President Wilson wrote notes to the German government, and took part in framing the treaty of peace.

_Power to "Receive" Foreign Ministers._--The President is also the authority designated by the Const.i.tution for receiving amba.s.sadors and ministers accredited by foreign governments to the government of the United States. To receive a foreign minister is to recognize him as the official representative to the United States of the government which has appointed him. When a new minister arrives at Washington, he is escorted to the White House by the secretary of state on a day agreed upon, and is received by the President. The new minister presents his credentials and delivers a short ceremonial address, to which the President responds. He is then recognized as the official organ of communication between the United States government and the government which he represents. The President, however, may refuse to recognize a minister from a country whose independence is in doubt, or one who is personally objectionable to the United States government. He may also request a foreign government to recall a minister accredited to the United States, or may dismiss one for conduct highly offensive to the government.

=The Military Powers of the President.=--The Const.i.tution declares that the President shall be commander in chief of the army and navy and also of the militia of the several states whenever it is called into the service of the United States. The power to declare war, however, belongs to Congress, though the President may through his management of the foreign affairs of the country bring about a situation which may make a declaration of war a virtual necessity. Congress also determines the strength of the army, the method of raising the forces, their terms of service, pay, subsistence, organization, equipment, location of forts, and indeed everything relating to its make-up.

_Extent of the President's Power._--The President, as commander in chief, decides where the troops are to be located, and where the ships are to be stationed. It is upon his orders that the troops are mobilized, the fleets a.s.sembled, and the militia of the states called out. He may direct the campaigns and might, if he wished, take personal command of the army, the navy, or the militia, though in practice he never does, the army, in fact, being commanded by a military officer and the navy by a naval officer. He may do whatever, in his judgment, may conduce to the destruction of the power or the weakening of the strength of the enemy, so long as he acts within the accepted rules of international law. His power, in short, is limited only by the requirements of military necessity and the law of nations. Thus he may declare that any property used by the enemy for warlike purposes or which may in other respects be a source of strength to the enemy shall be subject to confiscation. It was in pursuance of this power that President Lincoln issued the emanc.i.p.ation proclamation freeing the slaves in certain of the Southern states during the Civil War.

_Power to Govern Occupied Territory._--When an enemy's territory has once been occupied by the army, the President, as commander in chief, may a.s.sume control and govern it through such agencies and in such manner as he may see fit. He may displace the existing authorities or make use of them as he wishes. He may appoint military governors and set up special tribunals in the place of existing courts. He may suspend the writ of habeas corpus, inst.i.tute martial law, and deprive the inhabitants of other safeguards established by the Const.i.tution for their protection against the arbitrary encroachments of the government.

By virtue of this authority President Lincoln governed for some time those parts of the South which came under the jurisdiction of the military forces of the United States during the Civil War. In the same way President McKinley governed Porto Rico and the Philippines for many months during and after the war with Spain.

_Conclusions._--From this summary it will readily be seen that the powers of the President as commander in chief during war are very great, in fact almost unlimited. He may become, as President Lincoln did, practically a dictator, and if he should choose to abuse his powers he might deprive the people of a large portion of their liberties.

In time of peace, the military powers of the President are far less than during war, though they are still considerable. His duty to protect the states against invasion and his power to order out the troops to suppress domestic violence upon the application of the state executive or legislature are discussed in chapter iii. Whenever the movement of interstate commerce or the instrumentalities of the national government are interfered with by rioters it is his right and duty to employ the army or the navy if necessary to suppress the disturbances.[81] By an act of Congress pa.s.sed in 1795 and still in force, the President is authorized to call out the militia whenever the laws of the United States are opposed or their execution obstructed by combinations too powerful, in his judgment, to be suppressed by the ordinary course of judicial proceedings, or by the federal marshals. And the President is the sole judge of the existence of the state of facts thus described, and no court in the land can review his decision in regard thereto. It was in pursuance of this act that President Lincoln issued his first call for the militia in 1861.

[81] See further on this point, pp. 60-62.

=The President's Share in Legislation.=--While the chief duty of the President is to execute the laws, he is at the same time given a share in their making. This share is both positive and negative in character.

=Presidential Messages.=--The Const.i.tution makes it his duty to give Congress from time to time information of the state of the Union and to recommend for its consideration such measures as he may judge necessary and proper. This requirement rests upon the obvious fact that he possesses more extensive sources of knowledge in regard to the state of public affairs than any one else, and is also familiar with the workings of the laws, and hence is in a position to recommend legislation for their improvement.

The information required to be furnished Congress is contained in an annual message communicated at the beginning of each session, and in special messages communicated from time to time during the session.

_Early Practice._--It was the custom at the beginning of our national history for the President to deliver an address at the opening of Congress, in the presence of both houses a.s.sembled in the senate chamber, and for each house thereafter to draw up a suitable reply, in accordance with the English custom. This plan was followed by both Washington and Adams, but Jefferson inaugurated the practice of communicating what he had to say in the form of a written message. From that time down till 1913 all the presidential messages to Congress were in written form only; but in the latter year President Wilson revived the practice of addressing Congress in person.

_Character of the Annual Messages._--The annual message contains a review of the operations of the government during the preceding year, together with such recommendations for additional legislation as the President thinks the interests of the country require. It also usually contains a summary of the reports of the several heads of departments, and is accompanied by the full reports of the departments. Sometimes one or the other of the houses adopts resolutions calling on the President for information on particular subjects, and if in his judgment the communication of the information is not incompatible with the public interests, the request is complied with.

The message is printed in full in nearly all the daily newspapers of the country on the day on which it is communicated to Congress, and it is widely read by the people and commented on by editors. When the message has been received by the Congress, it is ordered to be printed, and the various recommendations which it contains are distributed among the appropriate committees of each house. The consideration which the recommendations receive at the hands of Congress depends upon the influence which the President wields with the two houses. If he belongs to a different political party from that which is in control of Congress, or if for other reasons Congress is out of sympathy with his policies, his recommendations count for little.