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Some of the departments, however, are made more directly subject to the President's control than others. For example, the Secretary of State, in the conduct of foreign affairs,' is completely subject to the President's orders; and the AttorneyGeneral must give an opinion or institute proceedings when required. On the other hand, when the Treasury was organized in 1789, it was definitely understood that Congress had a special control over the administration of that Department.2
The Supreme Court has held that the President is bound to see that an administrative officer faithfully discharges the duties assigned by law, but is not authorized to direct the officer as to the ways in which they shall be discharged. Nevertheless, the President has the power to remove the head of a department who refuses to obey his orders, and it is, therefore, rather difficult to see why, in actual practice, he cannot determine, within the lines of the statutes, the general policy to be followed by that officer. When President Jackson wanted the government funds withdrawn from the United States Bank, he removed two Secretaries of the Treasury, and finally appointed a third who was known to be subservient to his will. He had his way in the end.
The President also possesses a large ordinance power - that is, authority to supplement statutes by rules and regulations
provisions from which it may be derived are those which impose upon him the duty to see that the laws be faithfully executed, and permit him to require the opinion in writing of the principal officer in each of the executive departments upon any subject relating to the duties of their respective offices, but perusal of the early acts of Congress organizing the administrative system of the United States will show that the first Congress did not have the idea that the President had any power of direction over matters not political in character. . . . The act organizing the Treasury Department contains no reference to any presidential power of direction. It simply says that the Secretary of the Treasury shall generally perform all such services relative to the finances as he shall be directed to perform, and the context shows that reference is made to the direction of Congress, not to that of the President. . . . The result of our national administrative development has been thus a great enlargement of the American conception of the executive power." Principles of the Administrative Law of the United States, pp. 77 ff. For another view of the President's administrative power, see Readings, p. 177.
Readings, p. 200.
2 See below, p. 210.
3 This was an early case; Kendall v. United States, 12 Peters, 524 (1838). It is doubtful whether this view would be taken to-day.
covering matters of detail sometimes of very great importance. Among other things, he makes rules for the army and navy, the patent office, the customs, internal revenue, consular and civil services. Sometimes he issues these rules in accordance with provisions of the statutes and sometimes under his general executive power. Many of the army regulations he promulgates as commander-in-chief. When he makes rules for the civil service, he acts under specific provisions of the civil service law. Thus under his power to remove, to see to the faithful execution of the laws, and to issue ordinances, the President enjoys an administrative authority of no mean dimensions.1
As chief executive the President may instruct the AttorneyGeneral to institute proceedings against any one suspected of violating federal law, and in case of open resistance he may employ the armed force of the United States. Laxness or severity in law enforcement is, therefore, largely within his discretion.
The Power of Appointment and Removal
In connection with his administrative functions, the President may nominate a large number of federal officers. This is important from the point of view of politics, as well as administration.
When considered in relation to the manner of their selection, the civil authorities of the United States-other than the President, Vice-President, presidential electors, Senators and Representatives-fall into two groups: (1) those officers whose appointment is vested by the Constitution or by act of Congress in the President and Senate; and (2) those "inferior" officers, established by law, whose appointment is vested by Congress in the President, the courts of law, or the heads of departments.
The first group embraces most of the important subordinate officers of the federal government, the heads of departments, most of the bureau chiefs, judges of the inferior federal courts, many commissioners, such as the civil service and interstate commerce commissioners, revenue officers, and postmasters in
1 Fairlie, National Administration, pp. 16 ff.
2 Each house of Congress, of course, controls the appointment of its own officers except the presiding officer of the Senate.
large cities and towns. Taken together, they constitute an official army, whose salaries aggregate more than $12,000,000 a year. In filling these positions, the President and Senate are not hampered by any rules regarding qualifications; and as most of these officers hold for a term of four years, either under the Tenure of Office Act of 1820' or by other acts or practice, their appointment gives to each incumbent of the presidential office the disposal of an enormous amount of patronage.
The right of Congress to determine what is an "inferior" office has never been questioned, but no very consistent rule has been adopted in this matter. A few bureau chiefs of great importance - principally in the Department of Agricultureare "inferior" officers in the view of the law because their appointment is vested in the President or in the head of the department. On the other hand many bureau chiefs are appointed by the President and Senate. The Librarian of Congress is appointed by the President alone; and the great horde of clerks and minor officers are chosen by heads of departments.
The offices to be filled by the President and Senate may be divided into groups according to the degree of freedom which the President enjoys in making his own selections.2
1. Members of the Cabinet, that is, heads of departments, are usually the President's personal selection, although in this matter he is often controlled by preëlection promises or by obligations incurred in engaging the active support of certain prominent men in his party. At all events, the Senate, even when it is in the hands of an opposition party, does not seek to control the appointments to these offices; it usually ratifies the President's nominations promptly and without objections. The choice of
1 Congress, by this act passed in 1820, fixed the term of a large number of federal officers at four years subject to the President's removal power. The officer holding one of these positions is not guaranteed a four-year term, but may be removed by the President at will. Finley and Sanderson, The American Executive, p. 258. Federal judges, of course, hold office during good behavior.
2 It should be noted that, under the Constitution, the President may fill vacancies occurring during a recess of the Senate by granting commissions which expire at the end of the next session of that body. See Ford, Rise and Growth of American Politics, p. 290.
diplomatic representatives is also left largely to the President's discretion, as far as the Senate is concerned; although he often has many party obligations to consider in this connection. Military and naval appointments, especially in times of crisis, are principally subject to presidential control, but political influences are by no means wanting here. It is not often that the Senate interferes with appointments to the Supreme Court.
2. A second group of offices, filled by the President and Senate, is largely subject to the control of the Senators, as a result of the practice known as "senatorial courtesy." Under its power
to advise and consent, the Senate does not officially attempt to suggest nominations to the President, but by a custom which has grown up, it will only ratify appointments which are approved by the Senators (of the President's party) from the state in which the offices in question are located. If, however, they are located in a state not represented by a Senator of the same party, the President is freer to act.2 Thus it happens that appointments to federal offices within a state represented by members of the President's party are generally made by the Senators, or by the senior Senator, if he is the stronger of the two. This is not always the case, however. For example, President Garfield refused to place before the Senate certain candidates for federal offices in New York suggested by Senators Platt and Conkling of that state. The Senators, feeling that their rights had been infringed by this executive action, thereupon tendered their resignations, but on asking for vindication by the New York legislature failed to be reëlected. Here again, it is not a matter of formal rule, but of time and circumstance of the character of the President, Senators, and appointees in question.3
3. A third group of offices filled on presidential nomination is composed of minor positions within congressional districts, such as postmasterships in the smaller cities and towns. It has become a settled custom to allow the Representative, if he is of the President's party, to name the appointees of his district; but if
1 Readings, p. 212. These officers include revenue collectors, postmasters in large cities, customs officers, judges of inferior courts, district attorneys, etc.
If there is no Senator or Representative from a state, belonging to his party, the President consults party leaders in the state in question.
3 On this see Reinsch, American Legislatures, pp. 87 ff.
he is not of the President's party the patronage goes to the Senator or Senators, as in the case of offices within the second group. Mr. Bristow, the Fourth Assistant Postmaster-General, recently testified that when there was a vacancy in a post-office, the administration in power would send a request, upon a printed blank, to the member representing the district, if he was in political sympathy with the President's party, asking for the recommendation of some one to fill the place. The advice of the member is not binding, however, if the character or fitness of his nominee is not satisfactory to the government. This patronage is of considerable political importance, and in most states it is used in connection with the local party organization. Thus local
1 H. R. Reports, 58th Cong., 2d Sess., No. 2372, p. 7. Speaking of this necessity of the President's reliance on the recommendations of members of Congress, President Taft said: "A member of a community remote from the capital . . . wonders that a President, with high ideals and professions of a desire to keep the government pure and have efficient public servants, can appoint to an important local office a man of mediocre talent and of no particular prominence or standing or character in the community. Of course the President cannot make himself aware of just what standing the official appointed has. He cannot visit the district; he cannot determine by personal examination the fitness of the appointee. He must depend upon the recommendations of others; and in matters of recommendations, as indeed of obtaining office, it is leg muscle and lack of modesty which win, rather than fitness and character. The President has assistance in making his selection, furnished by the Congressmen and Senators from the locality in which the office is to be filled; and he is naturally quite dependent on such advice and recommendation. He is made more dependent on this because the Senate, by the Constitution, shares with him the appointing power; practically because of the knowledge of the Senators of the locality, the appointing power is in effect in their hands subject only to a veto by the President." Four Aspects of Civic Duty, p. 98.
2 The way in which this system may work out is finely illustrated by this despatch from Washington, printed in the New York Evening Post, of December 18, 1909: "Senator Albert J. Beveridge of Indiana is one of the busiest men in Congress this winter. In the last Congressional election all but two of the thirteen Congressional districts in Indiana went Democratic, and a Democrat was elected Senator, so that Mr. Beveridge has control of the patronage of eleven Congressional districts, as well as of the general patronage of the entire State. All told, the Senator expects to dispose of about 200 jobs this winter, ranging in importance from postmaster to two collectors of internal revenue.
'Realizing his responsibility, the Senator held conferences in many parts of the state before coming to Washington, with a view of ascertaining the wishes of the people most affected. It has been generally supposed that the Senator