information, and thus would enable the public to determine whether that influence was exerted by partisanship or by argu ment. In answer to those who urged that it would institute an unconstitutional relation between the executive and Congress, the committee reported: "No one who has occupied a seat on the floor of either house, no one of those who year after year so industriously and faithfully and correctly report the proceedings of the houses, no frequenter of the lobby or the gallery, can have failed to discern the influence exerted upon legislation by the visits of the heads of departments to the floors of Congress and the visits of the members of Congress to the offices in the departments. It is not necessary to say that the influence is dishonest or corrupt, but that it is illegitimate; it is exercised in secret by means that are not public - by means which an honest public opinion cannot accurately discover and over which it can therefore exercise no just control." 1 In response to the contention that the imposition of these quasi-legislative responsibilities upon heads of departments would make it impossible for them to perform their regular administrative duties, the committee recommended that under-secretaries should be appointed to whom should be confided the routine business requiring only order and accuracy, so that the chief officers could confine their attention to those larger duties involving important policies. In spite of these convincing arguments, the report of the committee was simply buried in the dreary waste of congressional documents. The case against an approach to parliamentary govern By the following order issued November 26, 1909, President Taft proposed to cut off the subterranean connection between the subordinates in the executive departments and Congress: "It is hereby ordered that no bureau, office, or division chief, or subordinate in any department of the Government, and no officer of the Army and Navy or Marine Corps stationed in Washington, shall apply to either House of Congress, or to any committee of either House of Congress, or to any Member of Congress for legislation or for appropriations or for congressional action of any kind, except with the consent and knowledge of the head of the department; nor shall any such person respond to any request for information from either House of Congress or any committee of either House, or any Member of Congress, except through, or as authorized by, the head of his department." An attack was made on this order, in the House, on January 27, 1910; see Congressional Record for January 28, 1910. ment has been stated by President Lowell as follows. If the Cabinet officers sat in Congress, the power of the President would be reduced and the chief control of the administration would pass to the legislature. If the President were of an opposite party from that in power in Congress, his administrative authority would be reduced to almost nothing, for, in those countries where parliamentary government has been introduced, the titular executive officer, whether he be the King of England or the President of France, loses his political power. Furthermore, deadlocks between the Senate and the House over any ministerial policy would inevitably lead to the supremacy of one branch of the legislature and the decline of the other. If our development should follow the line indicated in other countries having parliamentary government, the House of Representatives would become supreme, the Senate would sink into a mere opposition of the House like the House of Lords in England, and the President would become merely a nominal head. Furthermore, such a fusion of executive and legislative departments would strengthen the federal government at the expense of the states, and would destroy the power of the courts to declare statutes invalid. In other words, it is contended, anything like parliamentary government would make a revolution in the whole framework of our federal system, and dislocate the distribution of powers among the three departments. This argument, of course, does not apply to the proposal of the Senate committee to allow cabinet officers to discuss and defend administrative policies in either house of Congress. Doubtless such moderate change, however, would be regarded as a step in the direction of a political revolution, and we shall probably continue to maintain, by subterranean and extra-legal methods, the connections between the executive and legislature which are maintained openly and in the full light of public scrutiny in England and in France. 1 Essays on Government, pp. 25-45. CHAPTER XI THE NATIONAL ADMINISTRATION THE innumerable duties to be fulfilled in the execution of federal law under presidential supervision are distributed among nine great departments and certain commissions, established by Congress. Curiously enough, the Constitution makes no direct provision for these branches of the federal administration; but it evidently assumes their existence, for it authorizes the President to require in writing the opinion of the heads of the executive departments, and also gives Congress power to vest in them the appointment of inferior officers. It is on this constitutional basis, therefore, that Congress assumes the power to create departments by law, regulate the duties of their respective heads down to the minutest details, and prescribe their internal organization and the powers and duties of the chiefs of even the minor subdivisions. Occasionally, however, the President takes the initial steps in the organization of a bureau by executive order, and Congress has subsequently sanctioned the act by a special law, or a regular appropriation. The Heads of Departments The head of a federal department occupies a position radically different from that of a cabinet officer in any other country. He is appointed by the President,' and may be removed by him or by impeachment. His duties, however, are prescribed minutely, not in presidential orders, save in certain instances, but in statutes enacted by Congress. He is responsible to the President for the faithful execution of the law; but the President cannot alter or diminish any of the duties laid down by Congress, and cannot prevent Congress from imposing or taking away duties or from prescribing such minute details as amount to a 1 With the Senate's approval. Above, p. 189. 1 practical direction of the officer. "The President," says Mr. John Sherman, "is intrusted by the Constitution and laws with important powers, and so by law are the heads of departments. The President has no more right to control or exercise the powers conferred by law upon them than they have to control him in the discharge of his duties. It is especially the custom of Congress to intrust to the Secretary of the Treasury specific powers over the currency, the public debt, and the collection of the revenue. If he violates or neglects his duty, he is subject to removal by the President or impeachment, . . . but the President cannot exercise or control the discretion reposed by law in the Secretary of the Treasury, or in any head or subordinate of a department of the government."1 The President, as we have seen, has the power of removal, however, and may exercise it for the purpose of directing his subordinates. In actual practice, therefore, there are many variations from Mr. Sherman's apparently convincing legal argument, especially when a strong-willed President has a firm policy of his own which he is determined to carry out. Indeed, the logical application of his doctrine would amount to a complete decentralization of the administrative organization and a destruction of the President's responsibility. While it is impossible to give here a full account of the duties of each secretary, it seems desirable to consider some matters which are common to them all. 1. In the first place, a large appointing power to minor offices is conferred by law upon the departmental head, but this is now exercised under civil service rules which restrict his choice, in all except the important subordinate positions, to the candidates who have qualified by examination. The power of removal generally accompanies the power of appointment, although there are some important exceptions by law and by executive order. 2. In the second place, the head of a department enjoys a certain range of freedom in issuing departmental orders, for, by act of Congress, he may "prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its 1 J. Sherman, Recollections, Vol. I, p. 449; Readings, p. 200. business, and the custody, use, and preservation of the records, papers, and property appertaining to it." 3. Every departmental chief maintains a more or less definite relation to Congress. He must prepare annually a report of his department,' but this is largely a formal compilation, for the matters of policy or detail covered in it have little or no influence in directing legislation. Though Cabinet officers cannot be members of Congress, there is, as we have seen, nothing in the Constitution excluding them from the right to sit and speak there. Custom has decreed, however, that they must bring their influence to bear in circuitous ways. They often appear before Senate or House committees to explain measures or to answer inquiries as to some legislation relating to their respective departments.2 There are many instances of heads of departments transmitting to Congress, on their own motion, completed drafts of bills which they would like to see enacted into law. They sometimes establish friendly relations with the chairmen of prominent committees, and thus obtain a hearing for their policies which would otherwise be denied to them. 4. The head of every department is subjected to constant interruptions from outside parties such as can come to the chief of no great business organization. "Washington wishes to see evidence of democracy about the departments," says a former Secretary of the Treasury, Mr. Vanderlip. "Neither Senator nor Congressman is satisfied to cool his heels in an ante-room for any length of time, nor are political leaders who come to the capitol on a mission likely to be pleased if the Secretary's engagements are such that an appointment cannot be made without notice or delay. . . . The Secretary of this great department must give heed to innumerable trifles such as would never reach the head of even a comparatively small business organization. Requests come from people of importance, and they must be taken up with the care which the position of such persons demands rather than with any thought of their importance in relation to the administration of departmental affairs."4 The Report of the Secretary of State is transmitted to Congress with the President's annual message. 2 Reinsch, Readings, p. 371. 3 Readings, p. 267. Reinsch, Readings, p. 366. |