Part 24 (1/2)

=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 s.h.i.+ps and other war supplies, the fixing of prices of coal, wheat, sugar, steel, and various other commodities, the taking over and operation of private s.h.i.+p-building plants, the closing of liquor distilleries and the seizure of their stocks, the prohibition of exports to foreign countries, the seizure of German s.h.i.+ps 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 battles.h.i.+ps.

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 punis.h.i.+ng 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 Was.h.i.+ngton 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 Was.h.i.+ngton, 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.