committee, to the office of Postmaster-General; and Mr. Taft rewarded with the same office Mr. Hitchcock, who was chairman of the national committee during his campaign. Though as a rule the President confines his appointments to members of his own party, he sometimes chooses members of the opposition who have been lukewarm in their political activity. Furthermore, in making appointments to Cabinet positions the President usually attempts to have the different parts of the country fairly well represented. In all cases, he is supposed to select men with whom he can work harmoniously and who are willing to carry out the main lines of his policy. While the Cabinet officer's nomination must be confirmed by the Senate, as a matter of practice, the Senate always accepts the President's selection, so that in a very peculiar sense the Cabinet may be regarded as his personal retinue on whom he can depend for coöperation and advice in making his administration successful.

CHAPTER X

THE POWERS OF THE PRESIDENT

THE functions of the President are prescribed by the Constitution, but his real achievements are not set by the letter of the law. They are determined rather by his personality, the weight of his influence, his capacity for managing men, and the strength and effectiveness of the party forces behind him. As chief executive, he operates through a vast and complicated official hierarchy centering at Washington and ramifying throughout the great American empire and even into foreign countries through the diplomatic and consular services. As political leader he may use his exalted position to appeal to the nationto sectional, class, or group interests; he may use his veto power against laws passed by Congress, he may agitate by means of his messages, and he may bring pressure to bear in Congress and within his party through the discriminating use of the federal patronage. Thus it happens that we do not have the whole office of President before us when we are in the presence of the Constitution and statutes of the United States.

The President as Director of the Administration

It

The President is the head of the national administration. is his duty to see that the Constitution, laws, and treaties of the United States, and judicial decisions rendered by the federal courts are duly enforced everywhere throughout the United States. In the fulfilment of this duty, he may direct the heads of departments and their subordinates in the discharge of the functions vested in them by the acts of Congress. The exact degree, however, to which he may control an administrative officer is frequently a subject of political controversy, and cannot be set down with precision; it depends more upon the personality of the President than upon any theories of constitutional law.1

1 The President's power of direction is a product of historical development. It does not necessarily inhere in the Constitution. This power, according to Professor Goodnow, is "hardly recognized in the Constitution. The only

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

3

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.

1 Readings, p. 200.

2 See below, p. 210.

...

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.2

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.

* 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 18201 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 Agriculture — are "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,