THE PRESIDENCY (CONTINUED): INAUGURATION; POWERS AND DUTIES
=The Inauguration.=--It is no longer the practice to notify the
President officially of his election, and so without certificate of
election or commission, he presents himself at the national capital on
the 4th of March to take the oath of office required by the Constitution
and to enter upon the discharge of his duties. Toward noon on that day
he proceeds to the White House, as the official residence of the
President is styled, where he joins the outgoing President and both are
driven to the Capitol, followed by a procession. _The oath of office_ is
usually administered by the Chief Justice of the Supreme Court on a
platform erected for the purpose at the east front of the Capitol, and
in the presence of a vast throng of spectators from all parts of the
country.[74] Following the custom set by the first Chief Executive, the
President delivers a short _inaugural address_ in which he foreshadows
in a general way his policy as President, after which he returns with
the Ex-President to the White House, where he reviews for several hours
the procession of visitors.
[74] The oath of office was administered to President Washington in New
York city, then the temporary seat of government, by Chancellor
Livingston of New York state. In 1917, the 4th of March falling on
Sunday, President Wilson took the oath of office twice: on Sunday in
his office at the Capitol, and on the following day publicly in
connection with the inaugural ceremonies.
_Inaugural Pageantry._--The inauguration of the President is made the
occasion of a great pageant, to which hundreds of thousands of visitors
throng from every part of the Union. In the procession which escorts the
President to the Capitol are militia companies, headed by governors of
states, and civil organizations of every variety. Owing to the
inclemency of the weather which often prevails at this season of the
year, it has been proposed to change the date of the inauguration, but
since this will involve an amendment to the Constitution if the
inauguration is to take place at the beginning of the presidential term,
the success of the movement is doubtful.[75]
[75] When Vice Presidents Tyler, Johnson, Arthur, and Roosevelt
succeeded to the presidency, Congress was not in session and the oath
of office was administered without formalities. Mr. Arthur took the
oath in New York city before a local magistrate, and Mr. Roosevelt did
the same in Buffalo, where Mr. McKinley died. Vice President Fillmore,
however, took the oath of office as President in the presence of both
houses of Congress, which happened to be in session at the time of the
death of President Taylor.
=Compensation of the President.=--The Constitution declares that the
President shall, at stated times, receive for his services a
compensation which shall neither be increased nor diminished during the
time for which he has been elected. He is also forbidden to receive any
other emolument either from the United States or from any state.
The salary of the President was $25,000 a year until 1873, when it was
raised to $50,000. In 1909 it was raised to $75,000. Besides this salary
there is an allowance of $25,000 a year for traveling expenses, and
allowances for clerks, automobiles, house furnishings, fuel, lighting,
etc., making in the aggregate some $250,000 a year. In the White House
the nation furnishes the President with both a private and an official
residence.
=Extent of the President's Powers.=--The powers of the President are
partly conferred by the Constitution, 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.
=Classes of Powers.=--The various powers and duties which have been
conferred on the President by the Constitution 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
Constitution 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 Constitution 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 Constitution, 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
Constitution, 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 constitutional 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 Constitution 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 Constitution in regard to removal is that which relates to
impeachment. It might, therefore, be contended that the only
constitutional method of depriving an incumbent of an office to which he
has been appointed is by impeachment. But this process of removal is so
cumbersome 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 Constitution 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 passed 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 institute 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 circumstances
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 assassination 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 Classified Service._--The act provided for the classification 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 competitive
examinations to test the fitness of applicants for appointments to
positions in the classified service. The classified 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 Classified 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 classes 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-class postmasters and 20,000 artisans employed in the navy
yards; and in 1917 President Wilson placed 10,000 first-, second-, and
third-class postmasters under the rules. Of 517,805 officers and
employees in the executive civil service in 1917, 326,899 were subject
to competitive examination.
_Exempt Positions._--Among the positions not under the rules and for
which competitive examinations are not required are the more important
presidential offices such as cabinet officers, assistant secretaries,
chiefs of bureaus, United States attorneys, marshals, judges,
ambassadors 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
passed 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
classified service except as to the character and residence of the
applicant, and also forbids the levying of assessments on government
employees for campaign purposes or the solicitation of contributions
from employees.[79]
[79] By a law of 1907, employees in the classified 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 petitions 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
competitive 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 competitive 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. Ambassadors, 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 Constitution for receiving ambassadors 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 Constitution 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 assembled, 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 emancipation 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 assume 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, institute martial law, and deprive the
inhabitants of other safeguards established by the Constitution 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 passed 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 Constitution 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 assembled 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.
=Power to Call Extraordinary Sessions.=--The President has power to call
extraordinary sessions of Congress for the consideration of special
matters of an urgent character. Of course the President cannot compel
Congress to adopt his recommendations at a special session any more than
at a regular session, but he can sometimes hasten action and if he is
backed by a strong public opinion he may be able to accomplish even
more. The authority to call extraordinary sessions has been exercised by
Presidents Adams, Jefferson, Madison, Van Buren, Harrison, Pierce,
Lincoln, Hayes, Cleveland, McKinley, Roosevelt, Taft, and Wilson. In all
these cases Congress was called together to deal with extraordinary
situations such as foreign difficulties, financial panics, rebellion,
the enactment of appropriation bills which had failed at the regular
session, the enactment of tariff bills for which there was an urgent
demand, the approval of reciprocity treaties, and the like. The senate
has often been convened in extraordinary session at the beginning of a
new administration for the purpose of approving the nominations of the
President, but the house of representatives has never been called alone.
=Power to Adjourn Congress.=--The President is also authorized to
adjourn the two houses in case of disagreement between them as to the
time for adjourning the session. Only one such case of disagreement has
ever occurred, namely, in the special session of November, 1903, when
the senate proposed to adjourn and the house of representatives refused.
President Roosevelt did not, however, exercise his power in this case,
so the special session continued about two weeks longer, until it was
ended by the beginning of the regular session.
=Power to Issue Ordinances.=--Under the legislative functions of the
President may also be included what is known as the ordinance power,
that is, the power to issue certain orders and regulations having the
force of law. Such are the regulations for the government of the army
and navy, and those relating to the postal service, patents, pensions,
public lands, Indian affairs, the customs service, internal revenue
service, marine hospital service, the consular service, the civil
service, and many other branches of administration. Some of these
regulations are issued by the President under express authority
conferred upon him by acts of Congress; others are issued as a result
of the necessity of prescribing means for carrying into effect the laws
of Congress and sometimes of interpreting them;[82] while still others
are issued in pursuance of the constitutional powers of the President.
Such are the regulations issued for the government of the army and navy,
in pursuance of the authority of the President as commander in chief.
[82] A recent example is found in the regulations issued by President
Taft for putting into effect the new law levying a tax on corporations.
The meaning of the law in various particulars had to be interpreted,
and the method and means of assessing and collecting the tax had to be
prescribed. Another example was the regulations issued by President
Wilson in 1913 for the collection of the income tax.
=The Veto Power.=--Finally, the President is given an important share in
legislation through the constitutional requirement which requires that
all bills and resolutions passed by Congress shall be submitted for his
approval.[83] The power to withhold his approval of the acts passed by
Congress is popularly known as the veto power. It was called by the
framers of the Constitution the President's "qualified negative." This
prerogative constitutes an exception to the principle of the separation
of governmental powers, and was conferred upon the executive as a means
of enabling him to defend his constitutional powers and privileges
against the encroachments of the legislative department, as well as to
provide a check upon hasty and careless legislation by Congress. The
conditions under which the right of veto may be exercised, the forms
which it may take, and the procedure by which it may be overridden by
Congress are discussed in chapter xi. The President may veto a bill
because he believes it to be unconstitutional, or because he believes it
is unwise or inexpedient, though in both cases a wise executive will be
slow to set his judgment against the combined judgment of the members of
Congress.
[83] Ex-President Benjamin Harrison, in his book "This Country of
Ours," p. 138, thus describes the course which a bill takes after it
has passed both houses: "When a bill has passed both houses of Congress
and has been signed by the president of the senate and the speaker of
the house, it is taken, by the clerk of the committee on enrolled
bills, to the Executive Mansion, where the date of its delivery is
stamped upon it. The practice is then to send the bill to the head of
the department to which its subject matter belongs--to the war
department, if to army matters; to the interior, if to pensions, or
public lands, or Indian affairs, etc.--for the examination of the
secretary, and for a report from him as to any objections that may
occur to him. As to the frame of the bill, and as to any constitutional
questions involved, the attorney-general is often consulted, though the
bill does not relate to his department. The President then takes up the
bill, with the report from the department, and examines it, and if he
approves writes thereon "Approved," giving the date, and signs his
name. The bill, now become a law, is then sent to the state department
to be filed and published in the statutes at large."
_No Power to Veto Items in Appropriation Bills._--Unlike the governors
of many of the states, he cannot veto particular items in appropriation
bills, as a result of which he is sometimes confronted with the
embarrassing duty of signing a bill carrying certain appropriations to
which he objects, or of vetoing the entire bill. President Cleveland on
one occasion vetoed the rivers and harbors bill carrying an
appropriation of many millions of dollars rather than approve certain
items in it which he considered wasteful and extravagant. If the
President had the power to veto particular items in appropriation bills
he could prevent useless and extravagant appropriations in many cases
without being under the necessity of defeating at the same time those
which are desirable and necessary.
_Use of the Veto Power._--The early Presidents either did not make use
of the veto power at all, or employed it sparingly. Neither John Adams,
nor Thomas Jefferson, nor John Quincy Adams, while in the presidential
chair, vetoed any bills; and Washington, Madison, and Monroe together
vetoed only eight. Many of the later Presidents used the veto power more
freely.
No bill was passed over the veto of a President until the administration
of Tyler, when one was so passed. Four bills were passed over the vetoes
of Pierce, fourteen over those of Johnson, three over those of Grant,
one over a veto of Hayes, one over a veto of Arthur, two over the vetoes
of Cleveland, one each over the vetoes of Harrison, Taft, and Wilson.
_Joint Resolutions_ as well as bills are usually presented to the
President for his signature, and must be approved before they have any
validity, though it has not been the practice to submit to the
President, for his approval, joint resolutions proposing amendments to
the Constitution. Concurrent resolutions, which do not have the force of
law, but are merely expressions of the sense of the legislative
department on some question of interest to it alone, do not require the
approval of the President.[84]
[84] The distinction between bills, joint resolutions, and concurrent
resolutions is discussed on p. 204.
_Importance of the Veto._--The threat of the President to employ the
veto may be used to great effect. A strong President who has positive
ideas in regard to the kind of legislation which the country needs and
which public opinion demands, may compel the adoption in whole or in
part of those ideas by the threatened use of the veto. The necessity of
obtaining the approval of the President really gives him a powerful
share in legislation. Roosevelt, for example, on a number of occasions
threatened to veto bills about to be passed by Congress unless they
were changed so as to embody the ideas which he advocated, and the
threats were not without effect.
=The Pardoning Power of the President.=--The Constitution authorizes the
President "to grant reprieves and pardons for offenses against the
United States except in cases of impeachment."[85] The President cannot,
of course, pardon offenses against state law. Offenses against the
postal laws, the revenue laws, the laws against counterfeiting, and the
national banking laws are those for which pardons are most frequently
sought. Crimes committed in the territories are, however, offenses
against the laws of the United States, and are frequently the object of
applications for pardon.
[85] Impeachment offenses were excepted for the purpose of preventing
the President from granting pardons to his own appointees and thereby
shielding them from the consequences of their acts.
For definition of pardon and reprieve, and further discussion of the
nature and purpose of the pardoning power, see p. 102-103.
With the exception of the limitation in regard to impeachment offenses,
the President's power of pardon is absolute. His power is not restricted
by a board of pardons as is that of the governors of some of the states,
nor can Congress in any way abridge his power or restrict the effect of
a pardon granted by him. Moreover, he may grant a pardon before as well
as after conviction, though this is rarely done in the case of
individual offenses. It is sometimes done, however, where large numbers
of persons have become liable to criminal prosecution for participation
in rebellion, resistance to the laws, and similar acts.
_Amnesty._--In such cases the pardon is known as an "amnesty," and is
granted by proclamation. Thus in December, 1863, President Lincoln
issued an amnesty proclamation offering a full pardon to all persons in
arms against the United States provided they would lay down their arms
and return to their allegiance. In April, 1865, President Johnson issued
a proclamation offering amnesty to all those who had borne arms against
the United States, with certain exceptions and subject to certain
conditions. The last instance of the kind was the proclamation issued by
President Harrison, in 1893, granting amnesty to those Mormons who had
violated the anti-polygamy laws of the United States.
_Commutation._--The power to pardon is held also to include the power to
commute a sentence from a heavier to a lighter penalty, and also to
reduce a fine or remit it entirely.
_Parole._--In 1910, Congress passed a law providing for the release on
parole of federal prisoners sentenced to a term of more than one year,
except life prisoners, provided their conduct has been satisfactory. At
each of the three federal prisons there is a board of parole charged
with hearing applications for release.
=Immunity of the President from Judicial Control.=--Being at the head of
a coördinate department of the government, the President, unlike other
public officers, is not subject to the control of the courts. They
cannot issue processes against him, or restrain him or compel him to
perform any act. During the trial of Aaron Burr for treason, Chief
Justice Marshall issued a subpoena directed to President Jefferson
requiring him to produce a certain paper relating to Burr's acts, but
the President refused to obey the writ, declaring that if the chief
executive could be compelled to obey the processes of the courts he
might be prevented from the discharge of his duties. Even if the
President were to commit an act of violence, he could not be arrested or
in any way restrained of his liberty. The only remedy against acts of
violence committed by him is impeachment by the house of representatives
and trial by the Senate. If convicted, he must be deprived of his
office, after which his immunity ends and he is liable to prosecution
and trial in the ordinary courts as any other offender. The principle
upon which the President is exempt from the control of the courts is not
that he can do no wrong, but that if he were subject to judicial
restraint and compelled to obey the processes of the courts, the
administration of the duties of his high office might be interfered
with.
Nevertheless, the Supreme Court does not hesitate to exercise control
over the subordinates through whom the President acts in most cases, and
it will refuse to sanction orders or regulations promulgated by him if
they are unconstitutional. To this extent, his acts are subject to
judicial control.
=References.=--ANDREWS, Manual of the Constitution, pp. 180-201.
BEARD, American Government and Politics, ch. x. BRYCE, The American
Commonwealth (abridged edition), ch. v. FAIRLIE, National
Administration, chs. i-ii. HARRISON, This Country of Ours, ch. vi.
HINSDALE, American Government, ch. xxxii.
=Documentary and Illustrative Material.=--1. Copy of an inaugural
address of the President. 2. Copy of an annual message of the
President. 3. Copies of executive orders and proclamations. 4.
Copies of veto messages.
RESEARCH QUESTIONS
1. What is your opinion of Sir Henry Maine's saying that the President
of the United States is but a revised edition of the English King?
2. How do the powers of the President compare in importance and scope
with those of the King of England?
3. Have the President's powers increased or decreased since 1789? Give
your reasons.
4. Name some of the Presidents who were notable for the vigorous
exercise of executive power.
5. What is your opinion of the position taken by President Roosevelt
that the power of the President should be increased by executive
interpretation and judicial construction?
6. Is the President the judge of the extent and limits of his own
powers? If not, what authority is?
7. Do you think the President ought to be prohibited from removing
officers except for good cause? Ought the consent of the senate to be
required in all cases of removal?
8. What is your opinion of the proposition that the members of the
cabinet should be elected by the people?
9. Why are the powers of the President so much more extensive in time of
war than in time of peace?
10. What were the principal recommendations made by the President in his
last annual message?
11. Do you think he should be allowed to grant pardons _before_
conviction? Would it not be well to have a federal board of pardons
whose approval should be necessary to the validity of all pardons issued
by the President?
12. In the exercise of his duty to enforce the laws, may the President
interpret their meaning in case of doubt?
13. To what extent ought the President in making appointments to take
into consideration the politics of the appointee? To what extent should
he be governed by the recommendations of members of Congress?
14. Why should the executive power be vested in the hands of a single
person while the judicial and legislative powers are vested in bodies or
assemblies?
15. Do you think the present salary allowed the President adequate? How
does it compare with the allowance made to the King of England? the
President of France?