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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
'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. 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
1 The Report of the Secretary of State is transmitted to Congress with the President's annual message.
* Reinsch, Readings, p. 371. Readings, p. 267. Reinsch, Readings, p. 366.
5. With the multiplication of the official duties connected with immigration, commerce, transmission of mails, and taxation, it has been found necessary to give to the heads of certain departments the high authority of deciding finally upon cases appealed from lower administrative officials. For example, the immigration law provides "that in every case where an alien is excluded from admission into the United States under any law or treaty now existing or hereafter made, the decision of the appropriate immigration officers, if adverse to the admission of such alien, shall be final, unless reversed on appeal to the Secretary of Commerce and Labor"; and the decision of the Secretary is conclusive unless it can be made apparent that he has exceeded his jurisdiction or violated the law. Customs officers also are given large powers in appraising the value of imported goods, and the Court has declined to review the appraisements made by the proper authorities, declaring that the interposition of the courts in the appraisement of importations would involve the collection of the revenue in inextricable confusion and embarrassment. The Postmaster-General may issue fraud orders denying the use of the mails to persons and concerns who in his opinion are engaged in fraudulent transactions; and those affected have no right to appeal to the courts for a review of the facts on which he bases his decisions. In sustaining this conclusion, the Court said: "If the ordinary daily transactions of the departments which involve an interference with private rights were required to be submitted to the courts before action was finally taken, the result would entail practically a suspension of some of the most important functions of government. . . . It would practically arrest the executive arm of the government, if the heads of departments were required to obtain the sanction of the courts upon the multifarious questions arising in their departments, before action were taken in any matter which might involve the temporary disposition of private property. Each executive department has certain public functions and duties, the performance of which is absolutely necessary to the existence of the government, and it may temporarily at least operate with seeming harshness
1 Readings, p. 202.
2 See below, chap. xx; Readings, p. 204.
3 They may appeal on questions involving construction of the law; School of Magnetic Healing v. McNulty, 187 U. S. R., 94.
upon individuals. But it is wisely indicated that the rights of the public must, in those particulars, override the rights of individuals, provided there be reserved to them an ultimate recourse to the judiciary." 1
The heads of the various departments compose the President's Cabinet; but this is a matter of custom, not of law, for the Cabinet, as a collective body, has no legal existence or powers. Congress, in creating the first departments in 1789, did not recognize, in any way, the possibility of a Cabinet council composed of the heads. Indeed, the act establishing the Treasury Department was designed, as we have seen, to bring the Secretary under congressional control in many ways. The Senate, being a small body, was then regarded as the real executive council on account of its powers of ratifying treaties and confirming appointments.
Whatever may have been the view of Congress, however, Washington regarded the four chief executive officials, including the Attorney-General, who was not made head of a department until 1870, as his confidential advisers, though the term Cabinet was not immediately applied to them. He also exercised his constitutional right of requiring opinions from the heads of departments, and took them into his confidence in all important matters very soon after the first appointments were made. We have direct evidence of Cabinet meetings as early as 1791, when Washington, having departed on a tour to the South, wrote to the three Secretaries: "I have expressed my wish, if any serious or important cases . . . should arise . . . that the Secretaries for the Departments of State, Treasury, and War may hold consultations thereon, to determine whether they are of such a nature as to demand my personal attendance." During his first administration, Washington, by a gradual process, welded the departmental heads into an executive council, and by 1793 we find the term Cabinet or Cabinet Council applied to this group of presidential advisers.2
The Cabinet now meets regularly at stated times fixed by the
'On this point, see Readings, p. 202 ff., and an article by Thomas Reed Powell on "The Conclusiveness of Administrative Determinations in the Federal Government," American Political Science Review for August, 1907. 'See Yale Review, Vol. XV, pp. 160 ff.
President in the rules of the White House, printed in the Congressional Directory: The meetings are usually secret, and no record is kept of the transactions. As the special business of each department is discussed separately with the President by each officer, only matters of weight relative to the general policy of the administration are brought up for consideration at Cabinet meetings. Any important piece of legislation desired by the President or by a Cabinet officer and about to be submitted to Congress, will very probably be discussed in detail, especially if it concerns party principles. Votes are seldom taken on propositions, and they are of no significance beyond securing a mere expression of opinion. This is illustrated by an incident related of President Lincoln, who closed an important discussion in the Cabinet in which he found every member against him, with the announcement: "Seven nays, one aye, the ayes have it." Nevertheless, Cabinet meetings are of service to the administration, especially in maintaining harmonious coöperation among the departments and in formulating the executive policy.
The Cabinet is the President's council in a very peculiar sense, for, having no legal existence or warrant, it is not subjected as such to congressional control. In the first administration of President Jackson, the Senate requested the transmission of a paper purported to have been read by him to the heads of the executive departments, and he replied in no uncertain language: "The executive is a coördinate and independent branch of the government equally with the Senate, and I have yet to learn under what constitutional authority that branch of the legislature has a right to require of me an account of any communication, either verbally or in writing, made to the heads of departments acting as Cabinet council. As well might I be required to detail to the Senate the free and private conversations I have held with those officers on any subject relating to their duties and my own." 3
1 One day in the week is known in Washington as “Cabinet Day.” 2 Harrison, This Country of Ours, pp. 105 ff.
Richardson, Messages, Vol. III, p. 36.