Government in the United States, National, State and Local

by James Wilford Garner

CHAPTER XVI

THE PRESIDENCY (CONTINUED): INAUGURATION; POWERS AND DUTIES

The Inauguration.—It is no longer the practice to notify the President officially of his election, and so without certificate of election or commission, he presents himself at the national capital on the 4th of March to take the oath of office required by the Constitution and to enter upon the discharge of his duties. Toward noon on that day he proceeds to the White House, as the official residence of the President is styled, where he joins the outgoing President and both are driven to the Capitol, followed by a procession. The oath of office is usually administered by the Chief Justice of the Supreme Court on a platform erected for the purpose at the east front of the Capitol, and in the presence of a vast throng of spectators from all parts of the country.[74] Following the custom set by the first Chief Executive, the President delivers a short inaugural address in which he foreshadows in a general way his policy as President, after which he returns with the Ex-President to the White House, where he reviews for several hours the procession of visitors.

Inaugural Pageantry.—The inauguration of the President is made the occasion of a great pageant, to which hundreds of thousands of visitors throng from every part of the Union. In the procession which escorts the President to the Capitol are militia companies, headed by governors of states, and civil organizations of every variety. Owing to the inclemency of the weather which often prevails at this season of the year, it has been proposed to change the date of the inauguration, but since this will involve an amendment to the Constitution if the inauguration is to take place at the beginning of the presidential term, the success of the movement is doubtful.[75]

Compensation of the President.—The Constitution declares that the President shall, at stated times, receive for his services a compensation which shall neither be increased nor diminished during the time for which he has been elected. He is also forbidden to receive any other emolument either from the United States or from any state.

The salary of the President was $25,000 a year until 1873, when it was raised to $50,000. In 1909 it was raised to $75,000. Besides this salary there is an allowance of $25,000 a year for traveling expenses, and allowances for clerks, automobiles, house furnishings, fuel, lighting, etc., making in the aggregate some $250,000 a year. In the White House the nation furnishes the President with both a private and an official residence.

Extent of the President's Powers.—The powers of the President are partly conferred by the Constitution, partly by acts of Congress and treaties, and are partly the result of usage and precedent. The power which has been wielded at any given time, however, has depended upon the initiative and force of the President and the extent to which he enjoyed the confidence of Congress and the people. Again, the power which may be rightfully exercised depends upon the state of affairs under which the office is administered. In time of war the power of the President may be so expanded as to be limited in effect only by the necessities of the national existence. The powers wielded by President Lincoln during the Civil War were so great as to cause him to be frequently referred to as a dictator. After the outbreak of the war with Germany in 1917 vast and unprecedented powers were conferred on President Wilson by a succession of far-reaching acts of Congress. Among the extraordinary powers thus conferred on him were: the control of the manufacture and distribution of commodities needful for war purposes, the requisition of ships and other war supplies, the fixing of prices of coal, wheat, sugar, steel, and various other commodities, the taking over and operation of private ship-building plants, the closing of liquor distilleries and the seizure of their stocks, the prohibition of exports to foreign countries, the seizure of German ships in American ports, the making of regulations in respect to the treatment of enemy aliens, and the taking over and operation of railroads, telegraphs, and telephones.

Classes of Powers.—The various powers and duties which have been conferred on the President by the Constitution and the laws may be grouped under the following heads:

1. The power and duty of executing the laws, including the power to appoint, direct, and remove public officers.

2. The management of the foreign affairs of the country.

3. The power to command the army and navy.

4. Legislative powers, including the sending of messages to Congress, the calling of extra sessions, and especially the power to veto acts of Congress.

5. The power to grant pardons for offenses against the laws of the United States.

Execution of the Laws.—The President is the head of the executive branch of the government, and it is his duty to see that the Constitution is preserved, protected, and defended, and that the laws enacted in pursuance thereof, the treaties made under its authority, and the decisions rendered by the federal courts are enforced throughout the United States. For these purposes the army, the navy, and the militia are at his disposal, and in case of resistance to the laws and authority of the United States, they may be employed by him in such manner as he may direct, to overcome such resistance. Moreover, nearly all the civil and military officers of the United States are appointed by him and are, to a large degree, subject to his direction.

The President's Responsibility.—Unlike the state governments, the national government is so organized as to concentrate the power and the responsibility for the enforcement of the laws in the hands of a single executive. Those who are charged with aiding him in carrying out the government are his own appointees, and their responsibility is primarily to him alone.

Power of Appointment.—The Constitution declares that the President shall, with the "advice and consent" of the senate, appoint all officers of the United States whose appointment is not otherwise provided for by the Constitution, except that Congress may vest the appointment of inferior officers in the President alone, in the courts of law, or in the heads of departments.[76] This is one of the most important powers devolving upon the President, and probably consumes more of his time than all his other duties together. In the early days of the Constitution, the number of appointments was small, but as the government service expanded, the number of offices to be filled steadily increased until there are now about 11,000 important presidential offices, that is, offices filled by the President and the senate. The tenure of office act of 1820 fixed the terms of the great bulk of federal offices at four years, and even where the term is not prescribed by statute, it is the custom for most appointees to be replaced at the expiration of four years, so that in practice the four-year tenure is universal, except for federal judges, and each President must during his term make appointments to nearly all the presidential offices. In making these appointments he is not limited by any constitutional or statutory requirements in regard to qualifications. He is the sole judge of the fitness of candidates for appointments. The only limitation upon his power is the necessity of securing the approval of the senate, a requirement already discussed in chapter x, pages 190-191.

Appointments to Minor Positions are often made upon the recommendations of the representative in Congress from the district in which the office is located, though many such appointments are now made on the basis of examinations, under civil service rules. Obviously the President or the head of the department could not fill the thousands of minor positions of this sort without reliance upon the advice of others. They cannot investigate personally every application for appointments of this kind. It is natural, therefore, that they should accept the recommendations of members of Congress, who are more apt to be acquainted with the qualifications of applicants in their districts, and who are familiar with local conditions.

Power of Removal.—While the Constitution expressly authorizes the President to appoint officers, with the consent of the senate, it is completely silent on the question of whether he may remove an officer, either with or without the consent of the senate. The only provision in the Constitution in regard to removal is that which relates to impeachment. It might, therefore, be contended that the only constitutional method of depriving an incumbent of an office to which he has been appointed is by impeachment. But this process of removal is so cumbersome and unwieldy that if it were the only means of getting rid of incompetent office-holders many unfit persons would remain in office indefinitely, and, besides, it would be impossible for the President, upon whom the responsibility for the enforcement of the laws rests, to surround himself with officials in whose integrity and fitness he has confidence. Moreover, to resort to the process of impeachment to remove a person from a petty inferior office would be very much like shooting birds with artillery intended for destroying battleships.

From the first, therefore, it was recognized that there was another process of removal than by impeachment. But there was a difference of opinion as to whether that power lay with the President alone, or whether he could remove only with the consent of the senate, as in the case of appointments; or whether the power lay with Congress to prescribe how removals might be made. The matter was threshed over in the first Congress after the Constitution went into effect, and it was decided that the President might remove alone, without the necessity of securing the consent of the senate. But there was considerable fear that he might abuse the power, and Madison is said to have declared that the wanton removal of a meritorious officer would subject him to impeachment.

Early Practice.—For a long time the power of removal was used sparingly. Several of the early Presidents, in fact, made no removals at all, and during the first forty years of our national existence the total number of officers removed probably did not exceed 100. With the incoming of President Jackson, however, what is known as the spoils system was introduced; that is, large numbers of office-holders were removed in order to make places for those who had rendered political services to the party in power. Henceforth appointments were made largely as rewards for party service, often without regard to merit and fitness. Nevertheless, the right of the President to make removals for any cause that seemed to him proper, or for any cause whatsoever, continued to be recognized and acquiesced in by all parties until the breach occurred between President Johnson and Congress in 1867.

Act of 1867.—The action of President Johnson in removing officials who were in sympathy with Congress greatly offended that body, and in 1867 a tenure of office act was passed forbidding the President to make removals except with the consent of the Senate.[77] Thus the custom which for seventy-eight years had recognized the unlimited right of the President to remove officers without the necessity of securing the consent of the senate was now reversed. The violation of this law by President Johnson was the chief cause of his impeachment in 1868. With the incoming of President Grant, however, the law was modified, and in 1887 it was repealed. Thus after a brief interval the original interpretation was reverted to, and it has been followed ever since.

The Present Rule.—The right of the President to remove any federal officer appointed by him, except the judges, for any cause whatsoever, is now recognized, and Congress cannot abridge that right by prescribing the conditions under which removals may be made. His power in this respect is absolute and unlimited and may be employed for rewarding his political friends and punishing his enemies as well as for getting rid of incompetent and unfit persons in the public service.

Power of Direction.—Resulting from the power of removal is the power of the President to direct the officers whom he appoints, in regard to the discharge of their duties. Through the threat of removal, he may compel obedience to his orders, though of course he cannot require an officer to do an act which would amount to a violation of the law. Many of the duties of federal officers are prescribed by law, and the President cannot change these duties or require an officer to do his duty differently from the way in which the law requires him to do it. But the law expressly recognizes that the President has the power to direct many officers as to their duties. Thus the secretary of state in the negotiation of treaties and the settlement of disputes with foreign countries is almost wholly under the control of the President. The President may instruct him to begin negotiations with a particular government or to cease negotiations, and the secretary must obey his orders. So the President may direct the secretary of war in regard to the disposition of the armed forces. In the same way he may order the attorney-general to prosecute a "trust" or institute proceedings against any violator of the federal laws, or may direct him to drop proceedings once begun. Some officers, however, such as the secretary of the treasury and the postmaster-general, are less under the direction of the President, their duties being prescribed with more or less detail by acts of Congress.[78]

The Civil Service System.—For a half century following the introduction of the spoils system by President Jackson, both parties acted on the principle that the offices of the federal government were the legitimate spoils of victory at the polls. Under such circumstances the public service was demoralized and enfeebled, and the time of the President and heads of the departments was taken up with considering applications for office when it should have been devoted to more important matters. After the Civil War, a movement was started which had for its purpose the establishment of the merit system in the public service and the elimination of the spoils system.

The Civil Service Law of 1883.—The assassination of President Garfield in 1881 by a disappointed office seeker aroused public opinion to some of the worst evils of the existing system, and in obedience to the demands of public sentiment, Congress in 1883 enacted the civil service law which forms the basis of the present civil service system. This law provided for the creation of a commission of three persons, not more than two of whom should belong to the same political party. The commission was charged with forming rules for making appointments to the public service, and with carrying out the provisions of the law.

The Classified Service.—The act provided for the classification of the positions in the departments at Washington and in the customhouses and post offices where at least fifty persons were employed, and for the holding, under the supervision of the commission, of competitive examinations to test the fitness of applicants for appointments to positions in the classified service. The classified service now includes the departmental service at Washington, the customs service, the post office service, the railway mail service, the Indian service, the internal revenue service, and the government printing service.

Extent of the Classified Service.—At first the law applied to only about 14,000 positions, but since then the number has been increased from time to time by the creation of new offices and by orders of Presidents extending the rules to other classes of positions. A large extension, for example, was made by President Cleveland in 1896. President Roosevelt also made large extensions, so that when he went out of office there were about twice as many positions under the rules as there were when he became President. In 1912 President Taft added over 36,000 fourth-class postmasters and 20,000 artisans employed in the navy yards; and in 1917 President Wilson placed 10,000 first-, second-, and third-class postmasters under the rules. Of 517,805 officers and employees in the executive civil service in 1917, 326,899 were subject to competitive examination.

Exempt Positions.—Among the positions not under the rules and for which competitive examinations are not required are the more important presidential offices such as cabinet officers, assistant secretaries, chiefs of bureaus, United States attorneys, marshals, judges, ambassadors and ministers, besides a large number of minor officials like private secretaries. The income tax and currency acts of 1913 exempted from the operation of the civil service laws employees who collect the income tax and employees of the Federal Reserve Board. By an act of the same year deputy collectors of internal revenue and deputy marshals were withdrawn from the operation of the laws. These acts have been criticized by civil service reformers.

Examinations.—Civil service examinations are held at least twice each year in every state and territory, and any citizen of the United States is eligible to take the examination for any position to be filled. The commission keeps a list of eligibles, that is, of persons who have passed an examination, and whenever an appointment is to be made, it certifies to the appointing authority a list of those who are qualified, and from the three standing highest on the list the appointment must be made. But in making the appointments preference must be given to persons honorably discharged from the military or naval service by reason of their disability resulting from wounds or sickness. The examinations are required to be practical in character and of such a nature as to test, as far as possible, the capacity and fitness of the applicants to discharge the duties of the position for which they desire an appointment.

No appointment is permanent until after six months of probationary service, during which time the appointee must have demonstrated his capacity for the office. The law also prohibits members of Congress from making recommendations for appointments to positions in the classified service except as to the character and residence of the applicant, and also forbids the levying of assessments on government employees for campaign purposes or the solicitation of contributions from employees.[79]

How Removals are Made.—When an appointment has been made in pursuance of the civil service rules, the appointee is protected from removal for political reasons. The rules now in force declare that removals from the competitive service can be made only for just cause and for reasons stated in writing, with an opportunity to the employee to be heard. "Just cause" is defined as being any cause not merely political or religious, which will promote the efficiency of the service.

The Effect of the competitive system has been to give the public service the character of permanency and increased efficiency. The administration may change at Washington, but the more than 200,000 officials under the civil service rules are not affected thereby. There is no longer a "clean sweep" at the beginning of every administration, no longer the demoralization that once characterized the government service when a new party came into power. Thus the whole tone of the public service has been improved, and the President and heads of the departments have been partly relieved from the burden of listening to the appeals of the army of office seekers who used to descend upon Washington at the beginning of every new administration.

Management of Foreign Affairs.—The United States as a leading member of the family of nations has an extensive intercourse with other countries. There is no nation with which it has not entered into relations of some kind or another. With every civilized country and some that are not civilized, we have one or more treaties regulating certain of our relations with them.

How Treaties are Negotiated.—The President, by and with the advice and consent of the senate, two thirds of the members concurring, is charged with the negotiation of all treaties. The share of the senate in the negotiation of all treaties has already been discussed in chapter x.

The President usually does not conduct negotiations himself,[80] but acts through the secretary of state, who is a sort of minister of foreign affairs. The secretary is subject to his directions, however, and while conducting negotiations keeps the President fully informed of their progress, and secures his approval of all points which in his judgment should be submitted to him for an opinion. Foreign ministers at Washington who wish to discuss questions of foreign policy with the President are referred to the secretary, who is his responsible minister in such matters. Ambassadors, ministers, and consuls of the United States are appointed by the President, though the approval of the senate is essential to the validity of the appointment. Diplomatic representatives sent abroad bear letters of credence signed by the President, and from time to time they are given instructions as to the action they shall take in negotiations with foreign governments. These instructions are prepared by the secretary of state, though in important cases he consults the President and ascertains his wishes in the matter. The President may transfer a minister from one post to another, may recall him, or dismiss him whenever he likes.

Power to "Receive" Foreign Ministers.—The President is also the authority designated by the Constitution for receiving ambassadors and ministers accredited by foreign governments to the government of the United States. To receive a foreign minister is to recognize him as the official representative to the United States of the government which has appointed him. When a new minister arrives at Washington, he is escorted to the White House by the secretary of state on a day agreed upon, and is received by the President. The new minister presents his credentials and delivers a short ceremonial address, to which the President responds. He is then recognized as the official organ of communication between the United States government and the government which he represents. The President, however, may refuse to recognize a minister from a country whose independence is in doubt, or one who is personally objectionable to the United States government. He may also request a foreign government to recall a minister accredited to the United States, or may dismiss one for conduct highly offensive to the government.

The Military Powers of the President.—The Constitution declares that the President shall be commander in chief of the army and navy and also of the militia of the several states whenever it is called into the service of the United States. The power to declare war, however, belongs to Congress, though the President may through his management of the foreign affairs of the country bring about a situation which may make a declaration of war a virtual necessity. Congress also determines the strength of the army, the method of raising the forces, their terms of service, pay, subsistence, organization, equipment, location of forts, and indeed everything relating to its make-up.

Extent of the President's Power.—The President, as commander in chief, decides where the troops are to be located, and where the ships are to be stationed. It is upon his orders that the troops are mobilized, the fleets assembled, and the militia of the states called out. He may direct the campaigns and might, if he wished, take personal command of the army, the navy, or the militia, though in practice he never does, the army, in fact, being commanded by a military officer and the navy by a naval officer. He may do whatever, in his judgment, may conduce to the destruction of the power or the weakening of the strength of the enemy, so long as he acts within the accepted rules of international law. His power, in short, is limited only by the requirements of military necessity and the law of nations. Thus he may declare that any property used by the enemy for warlike purposes or which may in other respects be a source of strength to the enemy shall be subject to confiscation. It was in pursuance of this power that President Lincoln issued the emancipation proclamation freeing the slaves in certain of the Southern states during the Civil War.

Power to Govern Occupied Territory.—When an enemy's territory has once been occupied by the army, the President, as commander in chief, may assume control and govern it through such agencies and in such manner as he may see fit. He may displace the existing authorities or make use of them as he wishes. He may appoint military governors and set up special tribunals in the place of existing courts. He may suspend the writ of habeas corpus, institute martial law, and deprive the inhabitants of other safeguards established by the Constitution for their protection against the arbitrary encroachments of the government. By virtue of this authority President Lincoln governed for some time those parts of the South which came under the jurisdiction of the military forces of the United States during the Civil War. In the same way President McKinley governed Porto Rico and the Philippines for many months during and after the war with Spain.

Conclusions.—From this summary it will readily be seen that the powers of the President as commander in chief during war are very great, in fact almost unlimited. He may become, as President Lincoln did, practically a dictator, and if he should choose to abuse his powers he might deprive the people of a large portion of their liberties.

In time of peace, the military powers of the President are far less than during war, though they are still considerable. His duty to protect the states against invasion and his power to order out the troops to suppress domestic violence upon the application of the state executive or legislature are discussed in chapter iii. Whenever the movement of interstate commerce or the instrumentalities of the national government are interfered with by rioters it is his right and duty to employ the army or the navy if necessary to suppress the disturbances.[81] By an act of Congress passed in 1795 and still in force, the President is authorized to call out the militia whenever the laws of the United States are opposed or their execution obstructed by combinations too powerful, in his judgment, to be suppressed by the ordinary course of judicial proceedings, or by the federal marshals. And the President is the sole judge of the existence of the state of facts thus described, and no court in the land can review his decision in regard thereto. It was in pursuance of this act that President Lincoln issued his first call for the militia in 1861.

The President's Share in Legislation.—While the chief duty of the President is to execute the laws, he is at the same time given a share in their making. This share is both positive and negative in character.

Presidential Messages.—The Constitution makes it his duty to give Congress from time to time information of the state of the Union and to recommend for its consideration such measures as he may judge necessary and proper. This requirement rests upon the obvious fact that he possesses more extensive sources of knowledge in regard to the state of public affairs than any one else, and is also familiar with the workings of the laws, and hence is in a position to recommend legislation for their improvement.

The information required to be furnished Congress is contained in an annual message communicated at the beginning of each session, and in special messages communicated from time to time during the session.

Early Practice.—It was the custom at the beginning of our national history for the President to deliver an address at the opening of Congress, in the presence of both houses assembled in the senate chamber, and for each house thereafter to draw up a suitable reply, in accordance with the English custom. This plan was followed by both Washington and Adams, but Jefferson inaugurated the practice of communicating what he had to say in the form of a written message. From that time down till 1913 all the presidential messages to Congress were in written form only; but in the latter year President Wilson revived the practice of addressing Congress in person.

Character of the Annual Messages.—The annual message contains a review of the operations of the government during the preceding year, together with such recommendations for additional legislation as the President thinks the interests of the country require. It also usually contains a summary of the reports of the several heads of departments, and is accompanied by the full reports of the departments. Sometimes one or the other of the houses adopts resolutions calling on the President for information on particular subjects, and if in his judgment the communication of the information is not incompatible with the public interests, the request is complied with.

The message is printed in full in nearly all the daily newspapers of the country on the day on which it is communicated to Congress, and it is widely read by the people and commented on by editors. When the message has been received by the Congress, it is ordered to be printed, and the various recommendations which it contains are distributed among the appropriate committees of each house. The consideration which the recommendations receive at the hands of Congress depends upon the influence which the President wields with the two houses. If he belongs to a different political party from that which is in control of Congress, or if for other reasons Congress is out of sympathy with his policies, his recommendations count for little.

Power to Call Extraordinary Sessions.—The President has power to call extraordinary sessions of Congress for the consideration of special matters of an urgent character. Of course the President cannot compel Congress to adopt his recommendations at a special session any more than at a regular session, but he can sometimes hasten action and if he is backed by a strong public opinion he may be able to accomplish even more. The authority to call extraordinary sessions has been exercised by Presidents Adams, Jefferson, Madison, Van Buren, Harrison, Pierce, Lincoln, Hayes, Cleveland, McKinley, Roosevelt, Taft, and Wilson. In all these cases Congress was called together to deal with extraordinary situations such as foreign difficulties, financial panics, rebellion, the enactment of appropriation bills which had failed at the regular session, the enactment of tariff bills for which there was an urgent demand, the approval of reciprocity treaties, and the like. The senate has often been convened in extraordinary session at the beginning of a new administration for the purpose of approving the nominations of the President, but the house of representatives has never been called alone.

Power to Adjourn Congress.—The President is also authorized to adjourn the two houses in case of disagreement between them as to the time for adjourning the session. Only one such case of disagreement has ever occurred, namely, in the special session of November, 1903, when the senate proposed to adjourn and the house of representatives refused. President Roosevelt did not, however, exercise his power in this case, so the special session continued about two weeks longer, until it was ended by the beginning of the regular session.

Power to Issue Ordinances.—Under the legislative functions of the President may also be included what is known as the ordinance power, that is, the power to issue certain orders and regulations having the force of law. Such are the regulations for the government of the army and navy, and those relating to the postal service, patents, pensions, public lands, Indian affairs, the customs service, internal revenue service, marine hospital service, the consular service, the civil service, and many other branches of administration. Some of these regulations are issued by the President under express authority conferred upon him by acts of Congress; others are issued as a result of the necessity of prescribing means for carrying into effect the laws of Congress and sometimes of interpreting them;[82] while still others are issued in pursuance of the constitutional powers of the President. Such are the regulations issued for the government of the army and navy, in pursuance of the authority of the President as commander in chief.

The Veto Power.—Finally, the President is given an important share in legislation through the constitutional requirement which requires that all bills and resolutions passed by Congress shall be submitted for his approval.[83] The power to withhold his approval of the acts passed by Congress is popularly known as the veto power. It was called by the framers of the Constitution the President's "qualified negative." This prerogative constitutes an exception to the principle of the separation of governmental powers, and was conferred upon the executive as a means of enabling him to defend his constitutional powers and privileges against the encroachments of the legislative department, as well as to provide a check upon hasty and careless legislation by Congress. The conditions under which the right of veto may be exercised, the forms which it may take, and the procedure by which it may be overridden by Congress are discussed in chapter xi. The President may veto a bill because he believes it to be unconstitutional, or because he believes it is unwise or inexpedient, though in both cases a wise executive will be slow to set his judgment against the combined judgment of the members of Congress.

No Power to Veto Items in Appropriation Bills.—Unlike the governors of many of the states, he cannot veto particular items in appropriation bills, as a result of which he is sometimes confronted with the embarrassing duty of signing a bill carrying certain appropriations to which he objects, or of vetoing the entire bill. President Cleveland on one occasion vetoed the rivers and harbors bill carrying an appropriation of many millions of dollars rather than approve certain items in it which he considered wasteful and extravagant. If the President had the power to veto particular items in appropriation bills he could prevent useless and extravagant appropriations in many cases without being under the necessity of defeating at the same time those which are desirable and necessary.

Use of the Veto Power.—The early Presidents either did not make use of the veto power at all, or employed it sparingly. Neither John Adams, nor Thomas Jefferson, nor John Quincy Adams, while in the presidential chair, vetoed any bills; and Washington, Madison, and Monroe together vetoed only eight. Many of the later Presidents used the veto power more freely.

No bill was passed over the veto of a President until the administration of Tyler, when one was so passed. Four bills were passed over the vetoes of Pierce, fourteen over those of Johnson, three over those of Grant, one over a veto of Hayes, one over a veto of Arthur, two over the vetoes of Cleveland, one each over the vetoes of Harrison, Taft, and Wilson.

Joint Resolutions as well as bills are usually presented to the President for his signature, and must be approved before they have any validity, though it has not been the practice to submit to the President, for his approval, joint resolutions proposing amendments to the Constitution. Concurrent resolutions, which do not have the force of law, but are merely expressions of the sense of the legislative department on some question of interest to it alone, do not require the approval of the President.[84]

Importance of the Veto.—The threat of the President to employ the veto may be used to great effect. A strong President who has positive ideas in regard to the kind of legislation which the country needs and which public opinion demands, may compel the adoption in whole or in part of those ideas by the threatened use of the veto. The necessity of obtaining the approval of the President really gives him a powerful share in legislation. Roosevelt, for example, on a number of occasions threatened to veto bills about to be passed by Congress unless they were changed so as to embody the ideas which he advocated, and the threats were not without effect.

The Pardoning Power of the President.—The Constitution authorizes the President "to grant reprieves and pardons for offenses against the United States except in cases of impeachment."[85] The President cannot, of course, pardon offenses against state law. Offenses against the postal laws, the revenue laws, the laws against counterfeiting, and the national banking laws are those for which pardons are most frequently sought. Crimes committed in the territories are, however, offenses against the laws of the United States, and are frequently the object of applications for pardon.

With the exception of the limitation in regard to impeachment offenses, the President's power of pardon is absolute. His power is not restricted by a board of pardons as is that of the governors of some of the states, nor can Congress in any way abridge his power or restrict the effect of a pardon granted by him. Moreover, he may grant a pardon before as well as after conviction, though this is rarely done in the case of individual offenses. It is sometimes done, however, where large numbers of persons have become liable to criminal prosecution for participation in rebellion, resistance to the laws, and similar acts.

Amnesty.—In such cases the pardon is known as an "amnesty," and is granted by proclamation. Thus in December, 1863, President Lincoln issued an amnesty proclamation offering a full pardon to all persons in arms against the United States provided they would lay down their arms and return to their allegiance. In April, 1865, President Johnson issued a proclamation offering amnesty to all those who had borne arms against the United States, with certain exceptions and subject to certain conditions. The last instance of the kind was the proclamation issued by President Harrison, in 1893, granting amnesty to those Mormons who had violated the anti-polygamy laws of the United States.

Commutation.—The power to pardon is held also to include the power to commute a sentence from a heavier to a lighter penalty, and also to reduce a fine or remit it entirely.

Parole.—In 1910, Congress passed a law providing for the release on parole of federal prisoners sentenced to a term of more than one year, except life prisoners, provided their conduct has been satisfactory. At each of the three federal prisons there is a board of parole charged with hearing applications for release.

Immunity of the President from Judicial Control.—Being at the head of a coördinate department of the government, the President, unlike other public officers, is not subject to the control of the courts. They cannot issue processes against him, or restrain him or compel him to perform any act. During the trial of Aaron Burr for treason, Chief Justice Marshall issued a subpœna directed to President Jefferson requiring him to produce a certain paper relating to Burr's acts, but the President refused to obey the writ, declaring that if the chief executive could be compelled to obey the processes of the courts he might be prevented from the discharge of his duties. Even if the President were to commit an act of violence, he could not be arrested or in any way restrained of his liberty. The only remedy against acts of violence committed by him is impeachment by the house of representatives and trial by the Senate. If convicted, he must be deprived of his office, after which his immunity ends and he is liable to prosecution and trial in the ordinary courts as any other offender. The principle upon which the President is exempt from the control of the courts is not that he can do no wrong, but that if he were subject to judicial restraint and compelled to obey the processes of the courts, the administration of the duties of his high office might be interfered with.

Nevertheless, the Supreme Court does not hesitate to exercise control over the subordinates through whom the President acts in most cases, and it will refuse to sanction orders or regulations promulgated by him if they are unconstitutional. To this extent, his acts are subject to judicial control.

References.—Andrews, Manual of the Constitution, pp. 180-201. Beard, American Government and Politics, ch. x. Bryce, The American Commonwealth (abridged edition), ch. v. Fairlie, National Administration, chs. i-ii. Harrison, This Country of Ours, ch. vi. Hinsdale, American Government, ch. xxxii.

Documentary and Illustrative Material.—1. Copy of an inaugural address of the President. 2. Copy of an annual message of the President. 3. Copies of executive orders and proclamations. 4. Copies of veto messages.

Research Questions

1. What is your opinion of Sir Henry Maine's saying that the President of the United States is but a revised edition of the English King?

2. How do the powers of the President compare in importance and scope with those of the King of England?

3. Have the President's powers increased or decreased since 1789? Give your reasons.

4. Name some of the Presidents who were notable for the vigorous exercise of executive power.

5. What is your opinion of the position taken by President Roosevelt that the power of the President should be increased by executive interpretation and judicial construction?

6. Is the President the judge of the extent and limits of his own powers? If not, what authority is?

7. Do you think the President ought to be prohibited from removing officers except for good cause? Ought the consent of the senate to be required in all cases of removal?

8. What is your opinion of the proposition that the members of the cabinet should be elected by the people?

9. Why are the powers of the President so much more extensive in time of war than in time of peace?

10. What were the principal recommendations made by the President in his last annual message?

11. Do you think he should be allowed to grant pardons before conviction? Would it not be well to have a federal board of pardons whose approval should be necessary to the validity of all pardons issued by the President?

12. In the exercise of his duty to enforce the laws, may the President interpret their meaning in case of doubt?

13. To what extent ought the President in making appointments to take into consideration the politics of the appointee? To what extent should he be governed by the recommendations of members of Congress?

14. Why should the executive power be vested in the hands of a single person while the judicial and legislative powers are vested in bodies or assemblies?

15. Do you think the present salary allowed the President adequate? How does it compare with the allowance made to the King of England? the President of France?

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