Читать книгу The American Commonwealth - Viscount James Bryce - Страница 19
ОглавлениеPresidential Powers and Duties
The powers and duties of the president as head of the federal executive are the following:
Command of federal army and navy and of militia of several states when called into service of the United States
Power to make treaties, but with advice and consent of the Senate, i.e., consent of two-thirds of senators present;
to appoint ambassadors and consuls, judges of Supreme Court, and all other higher federal officers, but with advice and consent of Senate;
to grant reprieves and pardons for offences against the United States, except in cases of impeachment;
to convene both houses on extraordinary occasions;
to disagree with (i.e., to send back for reconsideration) any bill or resolution passed by Congress, but subject to the power of Congress to finally pass the same, after reconsideration, by a two-thirds majority in each house
Duty to inform Congress of the state of the Union, and to recommend measures to Congress;
to commission all the officers of the United States;
to receive foreign ambassadors;
to “take care that the laws be faithfully executed”
These functions group themselves into four classes:
Those which relate to foreign affairs
Those which relate to domestic administration
Those which concern legislation
The power of appointment
The conduct of foreign policy would have been a function of the utmost importance had not America, happy America, stood apart1 down till 1898 in a world of her own, unassailable by European powers, easily superior to the other republics of her continent, but with no present motive for aggression upon them. The president, however, has rarely been allowed a free hand in foreign policy. He cannot declare war, for that belongs to Congress, though to be sure he may, as President Polk did in 1845–46, bring affairs to a point at which it is hard for Congress to refrain from the declaration. Treaties require the approval of two-thirds of the Senate; and in order to secure this, it is usually necessary for the executive to be in constant communication with the Foreign Affairs Committee of that body. The House of Representatives has no legal right to interfere, but it often passes resolutions enjoining or disapproving a particular line of policy; and sometimes invites the Senate to coincide in these expressions of opinion, which then become weightier. The president is nowise bound by such resolutions, and has more than once declared that he does not regard them. But as some treaties, especially commercial treaties, cannot be carried out except by the aid of statutes, and as no war can be entered on without votes of money, the House of Representatives can sometimes indirectly make good its claim to influence. Many delicate questions, some of them not yet decided, have arisen upon these points, which the Constitution has, perhaps unavoidably, left in half light. In all free countries it is most difficult to define the respective spheres of the legislature and executive in foreign affairs, for while publicity and parliamentary control are needed to protect the people, promptitude and secrecy are the conditions of diplomatic success. Practically, however, and for the purposes of ordinary business, the president is independent of the House, while the Senate, though it can prevent his settling anything, cannot keep him from unsetling everything. He, or possibly his secretary of state, if the president should not have leisure to give close or continuous attention to foreign policy, retains an unfettered initiative, by means of which he may embroil the country abroad or excite passion at home.
The direct domestic authority of the president is in time of peace very small, because by far the larger part of law and administration belongs to the state governments, and because federal administration is regulated by statutes which leave little discretion to the executive. In war time, however, and especially in a civil war, it expands with portentous speed. Both as commander in chief of the army and navy, and as charged with the “faithful execution of the laws,” the president is likely to be led to assume all the powers which the emergency requires. How much he can legally do without the aid of statutes is disputed, for the acts of President Lincoln during the earlier part of the War of Secession, including his proclamation suspending the writ of habeas corpus, were subsequently legalized by Congress; but it is at least clear that Congress can make him, as it did make Lincoln, almost a dictator. And how much the war power may include appears in this, that by virtue of it and without any previous legislative sanction President Lincoln issued his emancipation proclamations of 1862 and 1863, declaring all slaves in the insurgent states to be thenceforth free, although these states were deemed to be in point of law still members of the Union.2
It devolves on the executive as well as on Congress to give effect to the provisions of the Constitution whereby a republican form of government is guaranteed to every state; and a state may, on the application of its legislature, or executive (when the legislature cannot be convened), obtain protection against domestic violence. Where, as in Louisiana in 1873, there are two governments disputing by force the control of a state, or where an insurrection breaks out, as in Rhode Island in 1840–42, or where riots stop the movement of mail trains on a railroad, as happened in Illinois in 1894, this power becomes an important one, for it involves the employment of troops, and may enable the president (since it is usually on him that the duty falls) to establish the government he prefers to recognize.3 Fortunately the case has been one of rare occurrence.
The president has the right of speaking to the nation by addresses or proclamations, a right not expressly conferred by the Constitution, but inherent in his position. Occasions requiring its exercise are uncommon. On entering office, it is usual for the new magistrate to issue an inaugural address, stating his views on current public questions. Washington also put forth a farewell address, but Jackson’s imitation of that famous document was condemned as a piece of vainglory. It is thought bad taste for the president to go round on a political stumping tour, and Andrew Johnson injured himself by the practice. But he retains the right of making political speeches with all the other rights of the ordinary citizen, including that of voting at federal as well as state elections in his own state. He is constantly invited to speak on nonpartisan occasions, and he is free to confer with and advise the leaders of his own party.
The position of the president as respects legislation is a peculiar one. The king of England is a member of the English legislature, because Parliament is in theory his Great Council which he summons and in which he presides, hearing the complaints of the people, and devising legislative remedies.4 It is as a member of the legislature that he assents to the bills it presents to him, and the term “veto power,” since it seems to suggest an authority standing outside to approve or reject, does not happily describe his right of dealing with a measure which has been passed by the council over which he is deemed to preside, though he now no longer appears in it except at the beginning and ending of a session. The American president is not a member of either house of Congress. He is a separate authority whom the people, for the sake of protecting themselves against abuses of legislative power, have associated with the legislature for the special purpose of arresting its action by his disapproval.5 So again the king of England can initiate legislation. According to the older Constitution, statutes purported to be made, and were till the middle of the fifteenth century actually made, by him, but “with the advice and consent of the Lords Spiritual and Temporal and of the Commons.” 6 According to the modern practice, nearly all important measures are brought into Parliament by his ministers, and nominally under his instructions. The American president cannot introduce bills, either directly or through his ministers, for they do not sit in Congress.7 All that the Constitution permits him to do in this direction is to inform Congress of the state of the nation, and to recommend the measures which his experience in administration shows to be necessary. This latter function is discharged by the messages which the president addresses to Congress. The most important is that sent by the hands of his private secretary at the beginning of each session.
George Washington used to deliver his addresses orally, like an English king, and drove in a coach and six to open Congress with something of an English king’s state. But Jefferson, when his turn came in 1801, whether from republican simplicity, as he said himself, or because he was a poor speaker, as his critics said, began the practice of sending communications in writing; and this has been followed ever since. The message usually—for besides the long one at the opening of a congressional session, others are sent as occasion requires—discusses the leading questions of the moment, indicates mischiefs needing a remedy, and suggests the requisite legislation. There are however persons in Congress who view with jealousy the action of the executive, though justified by precedent, when a bill drafted by a member of the administration is laid before either house, and as no minister sits there to explain and defend bills and there may be no majority to pass them, the message may be a shot in the air without practical result. It is rather a manifesto, or declaration of opinion and policy, than a step towards legislation. Congress need not take action; members go their own ways and bring in their own bills.
Far more effective is the president’s part in the last stage of legislation, for here he finds means provided for carrying out his will. When a bill is presented to him, he may sign it, and his signature makes it law. If, however, he disapproves of it, he returns it within ten days to the house in which it originated, with a statement of his grounds of disapproval. If both houses take up the bill again and pass it by a two-thirds majority in each house, it becomes law forthwith without requiring the president’s signature.8 If it fails to obtain this majority it drops.
Considering that the arbitrary use, by George III and his colonial governors, of the power of refusing bills passed by a colonial legislature had been a chief cause of the Revolution of 1776, it is to the credit of the Americans that they inserted this apparently undemocratic provision (which, however, existed in the Constitution of Massachusetts of 1780) in the Constitution of 1789.9 It has worked wonderfully well. Most presidents have employed it sparingly, and only where they felt either that there was a case for delay, or that the country would support them against the majority in Congress. Perverse or headstrong presidents have been generally defeated by the use of the two-thirds vote to pass the bill over their objections. Washington “returned” or vetoed two bills only; his successors down till 1830, seven. Jackson made a bolder use of his power—a use which his opponents denounced as opposed to the spirit of the Constitution; yet until the accession of President Cleveland in 1885 the total number vetoed was only 132 (including the so-called pocket vetoes) in ninety-six years.10 From 1892 to the end of Mr. Roosevelt’s second administration in 1909 there were 108 vetoes, making in all 541. In his first term Mr. Cleveland vetoed 301, the great majority being bills for granting pensions to persons who served in the Northern armies during the War of Secession. Though many of these bills had been passed with little or no opposition, two only were repassed over his veto. The only president who acted recklessly was Andrew Johnson. In the course of his three years’ struggle with Congress, he returned the chief bills passed for carrying out their Reconstruction policy, but as the majority opposed to him was large in both houses, these bills were promptly passed over his veto.
So far from exciting the displeasure of the people by resisting the will of their representatives, a president generally gains popularity by the bold use of his veto power. It conveys the impression of firmness; it shows that he has a view and does not fear to give effect to it. The nation, which has often good grounds for distrusting Congress, a body liable to be moved by sinister private influences, or to defer to the clamour of some noisy section outside, looks to the man of its choice to keep Congress in order, and has approved the extension which practice has given to the power. The president’s “qualified negative” was proposed by the Convention of 1787 for the sake of protecting the Constitution, and in particular, the executive, from congressional encroachments. It has now come to be used on grounds of general expediency, to defeat any measure which the executive deems pernicious either in principle or in its probable results.
The reasons why the veto provisions of the Constitution have succeeded appear to be two. One is that the president, being an elective and not a hereditary magistrate, is responsible to the people, and has the weight of the people behind him. The people regard him as an indispensable check, not only upon the haste and heedlessness of their representatives, the faults which the framers of the Constitution chiefly feared, but upon their tendency, a tendency whose mischievous force experience has revealed, to yield either to pressure from any section of their constituents, or to temptations of a private nature. The other reason is that a veto need never take effect unless there is a substantial minority exceeding one-third in one or other house of Congress, which agrees with the president. Such a minority shares his responsibility and encourages him to resist the threats of a majority, while if he has no substantial support in public opinion, his opposition is easily overborne. Hence this arrangement is preferable to a plan, such as that of the French Constitution of 179111 (under which the king’s veto could be overriden by passing a bill in three successive years), for enabling the executive simply to delay the passing of a measure which may be urgent, or which a vast majority of the legislature may desire. In its practical working the presidential veto power furnishes an interesting illustration of the tendency of unwritten or flexible constitutions to depart from, of written or rigid constitutions to cleave to, the letter of the law. The strict legal theory of the rights of the head of the state is in this point exactly the same in England and in America. But whereas it is now the undoubted duty of an English king to assent to every bill passed by both houses of Parliament, however strongly he may personally disapprove its provisions,12 it is the no less undoubted duty of an American president to exercise his independent judgment on every bill, not sheltering himself under the representatives of the people, or foregoing his own opinion at their bidding.13
As the president is charged with the whole federal administration, and responsible for its due conduct, he must of course be allowed to choose his executive subordinates. But as he may abuse this tremendous power the Constitution associates the Senate with him, requiring the “advice and consent” of that body to the appointments he makes.14 This confirming power has become a political factor of the highest moment. The framers of the Constitution probably meant nothing more than that the Senate should check the president by rejecting nominees who were personally unfit for the post to which he proposed to appoint them. The Senate has always, except in its struggle with President Johnson, left the president free to choose his cabinet ministers. But it early assumed the right of rejecting a nominee to any other office on any ground which it pleased, as for instance, if it disapproved his political affiliations, or wished to spite the president. Presently the senators from the state wherein a federal office to which the president had made a nomination lay, being the persons chiefly interested in the appointment, and most entitled to be listened to by the rest of the Senate when considering it, claimed to have a paramount voice in deciding whether the nomination should be confirmed. Their colleagues approving, they then proceeded to put pressure on the president. They insisted that before making a nomination to an office in any state he should consult the senators from that state who belonged to his own party, and be guided by their wishes. Such an arrangement benefited all senators alike, because each obtained the right of practically dictating the appointments to those federal offices which he most cared for, viz., those within the limits of his own state; and each was therefore willing to support his colleagues in securing the same right for themselves as regarded their states respectively. Of course when a senator belonged to the party opposed to the president, he had no claim to interfere, because places are as a matter of course given to party adherents only. When both senators belonged to the president’s party they agreed among themselves as to the person whom they should require the president to nominate. By this system, which obtained the name of the “courtesy of the Senate”, the president was practically enslaved as regards appointments, because his refusal to be guided by the senator or senators within whose state the office lay exposed him to have his nomination rejected. The senators, on the other hand, obtained a mass of patronage by means of which they could reward their partisans, control the federal civil servants of their state, and build up a faction devoted to their interests.15 Successive presidents chafed under the yoke, and sometimes carried their nominees either by making a bargain or by fighting hard with the senators who sought to dictate to them. But it was generally more prudent to yield, for an offended senator could avenge a defeat by playing the president a shrewd trick in some other matter; and as the business of confirmation is transacted in secret session, intriguers have little fear of the public before their eyes. The senators might, moreover, argue that they knew best what would strengthen the party in their state, and that the men of their choice were just as likely to be good as those whom some private friend suggested to the president. Thus the system throve and still thrives, though it received a blow from the conflict in 1881 between President Garfield and one of the New York senators, Mr. Roscoe Conkling. This gentleman, finding that Mr. Garfield would not nominate to a federal office in that state the person he proposed, resigned his seat in the Senate, inducing his co-senator Mr. Platt to do the same. Both then offered themselves for reelection by the state legislature of New York, expecting to obtain from it an approval of their action, and thereby to cow the president. The state legislature, however, in which a faction hostile to the two senators had become powerful, rejectd Mr. Conkling and Mr. Platt in favour of other candidates. So the victory remained with Mr. Garfield, while the nation, which had watched the contest eagerly, rubbed its hands in glee at the unexpected denouement.
It need hardly be added that the “courtesy of the Senate” would never have attained its present strength but for the growth, in and since the time of President Jackson, of the so-called Spoils System, whereby holders of federal offices have been turned out at the accession of a new president to make way for the aspirants whose services, past or future, he is expected to requite or secure by the gift of places.16
The right of the president to remove from office has given rise to long controversies on which I can only touch. In the Constitution there is not a word about removals; and very soon after it had come into force the question arose whether, as regards those offices for which the confirmation of the Senate is required, the president could remove without its consent. Hamilton had argued in the Federalist (though there is reason to believe that he afterwards changed his opinion) that the president could not so remove, because it was not to be supposed that the Constitution meant to give him so immense and dangerous a reach of power. Madison argued soon after the adoption of the Constitution that it did permit him so to remove, because the head of the executive must have subordinates whom he can trust, and may discover in those whom he has appointed defects fatal to their usefulness. This was also the view of John Marshall. When the question came to be settled in the Senate during the presidency of Washington, Congress, influenced perhaps by respect for his perfect uprightness, took the Madisonian view and recognized the power of removal as vested in the president alone. So matters stood till a conflict arose in 1866 between President Johnson and the Republican majority in both houses of Congress. In 1867, Congress fearing that the president would dismiss a great number of officials who sided with it against him, passed an act, known as the Tenure of Office Act, which made the consent of the Senate necessary to the removal of officeholders, even of the president’s (so-called) cabinet ministers, permitting him only to suspend them from office during the time when Congress was not sitting. The constitutionality of this act has been much doubted, and its policy is now generally condemned. It was a blow struck in the heat of passion. When President Grant became president in 1869, the act was greatly modified, and in 1887 it was repealed.
How dangerous it is to leave all offices tenable at the mere pleasure of a partisan executive using them for party purposes, has been shown by the fruits of the Spoils System. On the other hand a president ought to be free to choose his chief advisers and ministers, and even in the lower ranks of the civil service it is hard to secure efficiency if a specific cause, such as could be proved to a jury, must be assigned for dismissal.
The Constitution permits Congress to vest in the courts of law or in “the heads of departments” the right of appointing to “inferior offices.” This provision has been used to remove many posts from the nomination of the president, and by the Civil Service Reform Act of 1883 competitive examinations were instituted for about thirty-four thousand. Of the now enormous number of posts—there were, in 1909, 367,794 officers and employees of the executive civil service—nearly two-thirds were in that year subject to such examinations. A greater number, however, including many postmasterships and many places under the Treasury, remain in the gift of the president;17 while even as regards those which lie with his ministers, he may be invoked if disputes arise between the minister and politicians pressing the claims of their respective friends. The business of nominating is in ordinary times so engrossing as to leave the chief magistrate of the nation little time for his other functions.
Artemus Ward’s description of Abraham Lincoln swept along from room to room in the White House by a rising tide of office-seekers is hardly an exaggeration. From the 4th of March, when Mr. Garfield came into power, till he was shot in the July following, he was engaged almost incessantly in questions of patronage.18 Yet the president’s individual judgment has little scope. He must reckon with the Senate; he must requite the supporters of the men to whom he owes his election: he must so distribute places all over the country as to keep the local wire-pullers in good humour, and generally strengthen the party by “doing something” for those who have worked or will work for it. Although the minor posts are practically left to the nomination of the senators or congressmen from the state or district, conflicting claims give infinite trouble, and the more lucrative offices are numerous enough to make the task of selection laborious as well as thankless and disagreeable. In every country statesmen find the dispensing of patronage the most disagreeable part of their work; and the more conscientious they are, the more does it worry them. No one has more to gain from a thorough scheme of civil service reform than the president. The present system throws work on him unworthy of a fine intellect, and for which a man of fine intellect may be ill qualified. On the other hand the president’s patronage is, in the hands of a skilful intriguer, an engine of far-spreading potency. By it he can oblige a vast number of persons, can bind their interests to his own, can fill important places with the men of his choice. Such authority as he has over the party in Congress, and therefore over the course of legislation, such influence as he exerts on his party in the several states, and therefore over the selection of candidates for Congress, is due to his patronage. Unhappily, the more his patronage is used for these purposes, the more it is apt to be diverted from the aim of providing the country with the best officials.
In quiet times the direct legal power of the president is not great, but his influence may be great if he combines tact with courage. He is hampered at every turn by the necessity of humouring his party. The trivial and mechanical parts of his work leave him too little leisure for framing large schemes of policy, while in carrying them out he needs the cooperation of Congress, which may be jealous, or indifferent, or hostile. His power to affect legislation largely depends on his personal capacity for leadership, and of course also on the strength of his party in Congress. In troublous times it is otherwise, for immense responsibility is then thrown on one who is both the commander in chief and the head of the civil executive. Abraham Lincoln wielded more authority than any single Englishman has done since Oliver Cromwell. It is true that the ordinary law was for some purposes practically suspended during the War of Secession. But it might again have to be similarly suspended, and the suspension makes the president a sort of dictator.
Setting aside these exceptional moments, the dignity and power of the presidential office, as distinguished from the personal influence which a particularly able or energetic president may exert, did not greatly grow between the time of Andrew Jackson, the last president who, not so much through his office as by his personal ascendency and the vehemence of his character, led and guided his party from the chair, and the death of President McKinley in 1901. Here, too, one sees how a rigid or supreme Constitution serves to keep things as they were. But for its iron hand, the office would surely, in a country where great events have been crowded on one another and opinion changes rapidly under the teaching of events, have either risen or fallen, have gained strength or lost it.
In no European country is there any personage to whom the president can be said to correspond. If we look at parliamentary countries like England, Italy, Belgium, he resembles neither the sovereign nor the prime minister, for the former is not a party chief at all, and the latter is palpably and confessedly nothing else. The president enjoys more authority, if less dignity, than a European king. He has powers for the moment narrower than a European prime minister, but these powers are more secure, for they do not depend on the pleasure of a parliamentary majority, but run on to the end of his term. One naturally compares him with the French president, but the latter has a prime minister and cabinet, dependent on the chamber, at once to relieve and to eclipse him: in America the president’s cabinet is a part of himself and has nothing to do with Congress. The president of the Swiss Confederation is merely the chairman for a year of the Administrative Federal Council (Bundesrath), and can hardly be called the executive chief of the nation.
The difficulty in forming a just estimate of the president’s power arises from the fact that it differs so much under ordinary and under extraordinary circumstances. This is a result which republics might seem specially concerned to prevent, and yet it is specially frequent under republics, as witness the cases of Rome and of the Italian cities in the Middle Ages. In ordinary times the president may be compared to the senior or managing clerk in a large business establishment, whose chief function is to select his subordinates, the policy of the concern being in the hands of the board of directors. But when foreign affairs become critical, or when disorders within the Union require his intervention—when, for instance, it rests with him to put down an insurrection or to decide which of two rival state governments he will recognize and support by arms—everything may depend on his judgment, his courage, and his hearty loyalty to the principles of the Constitution.
It used to be thought that hereditary monarchs were strong because they reigned by a right of their own, not derived from the people. A president is strong for the exactly opposite reason, because his rights come straight from the people. We shall have frequent occasion to observe that nowhere is the rule of public opinion so complete as in America, or so direct; that is to say, so independent of the ordinary machinery of government. Now the president is deemed to represent the people no less than do the members of the legislature. Public opinion governs by and through him no less than them, and makes him powerful even against a popularly elected Congress. This is a fact to be remembered by those Europeans who seek in the strengthening of the hereditary principle a cure for the faults of government by assemblies. And it also suggests the risk that attaches to power vested in the hands of a leader directly chosen by the people. A high authority observes:19
“Our holiday orators delight with patriotic fervour to draw distinctions between our own and other countries, and to declare that here the law is master and the highest officer but the servant of the law, while even in free England the monarch is irresponsible and enjoys the most complete personal immunity. But such comparisons are misleading, and may prove mischievous. In how many directions is not the executive authority in America practically superior to what it is in England! And can we say that the President is really in any substantial sense any more the servant of the law than is the Queen? Perhaps if we were candid we should confess that the danger that the executive may be tempted to a disregard of the law may justly be believed greater in America than in countries where the chief magistrate comes to his office without the selection of the people; and where consequently their vigilance is quickened by a natural distrust.”
Although few presidents have shown any disposition to strain their authority, it has often been the fashion in America to be jealous of the president’s action, and to warn citizens against what is called “the one man power.” General Ulysses S. Grant was hardly the man to make himself a tyrant, yet the hostility to a third term of office which moved many people who had not been alienated by the faults of his administration, rested not merely on reverence for the example set by Washington, but also on the fear that a president repeatedly chosen would become dangerous to republican institutions. This particular alarm seems to a European groundless. I do not deny that a really great man might exert ampler authority from the presidential chair than its recent occupants have done. The same observation applies to the popedom and even to the English throne. The president has a position of immense dignity, an unrivalled platform from which to impress his ideas (if he has any) upon the people. But it is hard to imagine a president overthrowing the existing Constitution. He has no standing army, and he cannot create one. Congress can checkmate him by stopping supplies. There is no aristocracy to rally round him. Every state furnishes an independent centre of resistance. If he were to attempt a coup d’etat, it could only be by appealing to the people against Congress, and Congress could hardly, considering that it is reelected every two years, attempt to oppose the people. One must suppose a condition bordering on civil war, and the president putting the resources of the executive at the service of one of the intending belligerents, already strong and organized, in order to conceive a case in which he will be formidable to freedom. If there be any danger, it would seem to lie in another direction. The larger a community becomes the less does it seem to respect an assembly, the more is it attracted by an individual man. A bold president who knew himself to be supported by a majority in the country, might be tempted to override the law, and deprive the minority of the protection which the law affords it. He might be a tyrant, not against the masses, but with the masses. But nothing in the present state of American politics gives weight to such apprehensions.
