Government in the United States, National, State and Local

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.

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.

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

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.

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 subpœna 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?

CHAPTER XVII

THE CABINET AND THE EXECUTIVE DEPARTMENTS

The Cabinet.– The heads of the ten executive departments collectively constitute the President's cabinet. They are, in the order of rank, the secretary of state (first styled the secretary of foreign affairs), the secretary of the treasury, the secretary of war, the attorney-general, the postmaster-general, the secretary of the navy, the secretary of the interior, the secretary of agriculture, the secretary of commerce, and the secretary of labor. They are appointed by the President with the consent of the senate, which in practice is never refused; and they may be dismissed by him at any time. The salary of cabinet members is $12,000 a year.

Origin and Nature of the Cabinet.– There was no thought in the beginning that the heads of departments should constitute a cabinet or advisory council to the President, and during the first administration they were never, as a matter of fact, convened by him for collective consultation. When their opinions or advice were desired they were requested by written communication. During his second term, however, President Washington adopted the practice of assembling the heads of departments occasionally for consultation not only on matters pertaining to their particular departments but in regard to questions of general executive policy. Thus the cabinet meeting became a regular feature of executive procedure, and the cabinet a permanent institution. It is well to remember, however, that the cabinet as such is not mentioned in the Constitution, and the name "cabinet" never appeared in any law until the year 1907. No record is kept of its proceedings.

Cabinet Responsibility.– Unlike a European cabinet, the members of the President's cabinet are not, and cannot be, members of either house of Congress; they have no seats in Congress; they are not responsible to Congress for their policies, and they never think of resigning when Congress refuses to carry out their recommendations or to approve their official acts. They are responsible solely to the President for their official conduct, and are subject to his direction, except in so far as their duties are prescribed by law. They are, in short, the ministers of the President, not of Congress; administrative chiefs, not parliamentary leaders. It may happen, therefore, that members of the cabinet, like the President, may belong to the party which is in the minority in Congress.86

The Department of State.– At the head of the department of state is the secretary of state, who is the ranking member of the cabinet and the first in line for the presidency in case of the death or removal of both President and Vice President. He sits at the right hand of the President at cabinet meetings and is given precedence over his colleagues on occasions of ceremony. There are also three assistant secretaries in the department, and a counselor, who advises the President and Secretary of State in regard to questions of international law.

The duties of the secretary of state fall into three groups: first, he is the custodian of the great seal and of the archives of the United States. In this capacity he receives the acts and resolutions of Congress, publishes them in certain papers, and preserves the originals. Under this head also fall the duties of countersigning proclamations and important commissions of the President and of attaching thereto the great seal. In the second place, the secretary of state is the organ of communication between the national government and the state governments. Thus an application from the governor of a state for troops to suppress domestic violence, or a request for the extradition of a criminal who has taken refuge in a foreign country, is made through the secretary of state. In the third place, the secretary of state is the organ of communication between the United States and foreign powers, that is, he is the minister of foreign affairs. He carries on all correspondence with foreign governments, negotiates treaties, countersigns warrants for the extradition of fugitives from the justice of foreign countries, issues passports to American citizens wishing to travel abroad, and grants exequaturs to foreign consuls in the United States.

The Diplomatic Service.– For purposes of administration the department of state is organized into a number of bureaus and divisions. The Diplomatic Bureau prepares diplomatic correspondence with foreign governments, and has charge of the engrossing of treaties and other formal papers, the preparation of the credentials of diplomatic representatives, and of ceremonious letters. The United States government is now represented at the governments of nearly fifty different foreign countries by diplomatic representatives, and most of these governments maintain diplomatic representatives at Washington. Our representatives to Great Britain, France, Germany, Russia, Austria-Hungary, Italy, Japan, Mexico, Brazil, Turkey, Spain, Argentina, and Chile bear the rank of ambassador. The government is represented at most of the other countries by envoys extraordinary and ministers plenipotentiary; but to one country (Liberia) it sends a minister resident. The principal difference between the different classes of ministers is one of rank and precedence. At the more important foreign posts the ambassador or minister is provided with from one to three secretaries. There are also interpreters at the legations in Oriental countries, and at all the important foreign capitals military and naval attachés are attached to the legation.

Elimination of the Spoils System.– The efficiency of the diplomatic service has been much impaired by the existence of the spoils system, as a result of which diplomatic appointments are determined largely by political considerations, and changes are made by each new administration. In the administrations of Presidents Roosevelt and Taft, however, a beginning was made toward the introduction of the merit system into the diplomatic service.

Duties of Diplomatic Representatives.– The principal duties of diplomatic representatives are to watch over the interests of their country and its citizens in the country to which they are accredited and to see that they receive proper protection, to present and cause to be settled all claims against the foreign country in which they reside, to negotiate treaties, to settle disputes and adjust difficulties, to promote friendly relations, and, in general, to represent their government in its relations with the government to which they are accredited. It is also the duty of a diplomatic representative to keep his government fully informed on all matters in which it is likely to be interested. He is expected to transmit reports relating to political conditions, finance, commerce, agriculture, arts and science, systems of taxation, population, judicial statistics, new inventions, and other matters of possible interest to his government.

The procedure by which treaties are negotiated may take either of two courses: the secretary of state may conduct the negotiations with a foreign minister at Washington, or he may direct the American minister in the foreign country with which it is desired to treat to negotiate with the minister of foreign affairs of that government.87

The Consular Service.—The Consular Bureau in the department of state has charge of the correspondence with our consular officers in foreign countries. A consul differs from a diplomatic representative in being a commercial rather than a political representative. Consuls are stationed at all important commercial centers in foreign countries, to look after the commercial interests of their country, promote foreign trade, watch over shipping and navigation, administer the estates of American citizens dying abroad, assist in the administration of our customs, health, navigation, immigration, and naturalization laws, and to collect such information concerning the trade, industries, and markets of foreign countries as may be of value to the commercial interests of the United States.88