As their plan contemplated a strong independent executive who would not hesitate to use the far-reaching powers placed in his hands to defeat measures which he disapproved of, it was necessary to guarantee him against popular removal. In this respect again we see both English and American constitutional practice disregarded, since neither afforded the desired security of tenure. In the various states the governor was liable to be impeached by the lower branch of the legislature and expelled from office when convicted by the senate, which was usually the court before which impeachment cases were tried. A mere majority in each house was usually sufficient to convict,[118] and as both houses were directly elected,[119] it virtually gave the majority of the voters the power to remove. This was simply an adaptation of the English practice which allowed a majority of the Commons to impeach and a majority of the Lords to convict. That this had a strong tendency to make the legislative body supreme is evident, since the power, if freely used, would overcome all opposition on the part of either the executive or the judiciary. Any combination of interests that could command a majority in both houses of Parliament could thus enforce its policy. This practically destroyed the executive check in the English Constitution and for that very reason the founders of our government rejected it. They clearly saw that to make the President's veto effective, he would have to be protected in its exercise. To have adopted the English practice and allowed a mere majority of the Senate to convict in impeachment cases would have given Congress power to destroy the President's veto by impeaching and removing from office any executive who dared to use it. This was guarded against by making, a two-thirds majority in the Senate necessary to convict any official impeached by the House. And since this two-thirds majority is one which in practice can not be obtained, the power to impeach may be regarded, like the power to amend, as practically non-existent. Only two convictions have been obtained since the Constitution was adopted. John Pickering, a Federal district judge, was convicted March 12, 1803, and removed from office, and at the outbreak of the Civil War a Federal district judge of Tennessee, West H. Humphreys, who joined the Confederacy without resigning, was convicted. William Blount was acquitted in 1798 on the ground that, as a United States senator, he was not a "civil officer" within the meaning of the impeachment provision of the Constitution, and so not liable to impeachment. Samuel Chase, Associate Justice of the United States Supreme Court, President Andrew Johnson, and Secretary of War, William W. Belknap, would have been convicted but for the extraordinary majority required in the Senate.
The practical impossibility of removing a public official by means of impeachment proceedings has made the executive and the judicial veto thoroughly effective, since it has deprived Congress of all power to punish by removing from office those officials who thwart its purpose. It has made the President and the Supreme Court much stronger than the House of Representatives—a result which the framers of the Constitution no doubt desired.
In addition to the President's qualified veto on laws about to be passed, which, as we have seen, amounts in practice to an unlimited negative, he has what may be called an absolute veto on their execution. This is the necessary consequence of his complete independence, taken in connection with his power of appointment and removal. Controlling the administrative arm of the government, he can execute the laws of Congress or not as he may see fit. He may even fail to enforce an act which he himself signed, inasmuch as his approval in a legislative capacity does not bar his subsequent disapproval as an executive. Of course, it does not follow that this power is openly and avowedly exercised. Usually it is not. An easier and more effective method is the one which obscures the real intention of the executive by a sham attempt at enforcement.
It may be contended that the Constitution makes it his duty to enforce all laws without regard to his own views of their wisdom or expediency. This contention, however, does not appear to be borne out by the purpose of the Constitution itself. It was not the intention of the framers of that instrument to make the President a mere administrative agent of Congress, but rather to set him over against that body and make him in a large measure the judge of his own authority. If it be claimed that it is his duty to enforce all laws that have been regularly enacted, it must at the same time be conceded that the Constitution permits their non-enforcement, since it has given neither to Congress nor to the people any effective power to remove him for neglect of duty. Moreover, his oath of office does not expressly bind him to enforce the laws of Congress, but merely to "execute the office of President ... and preserve, protect, and defend the Constitution of the United States."[120]
This omission can not be satisfactorily explained as a mere oversight. The Massachusetts constitution of 1780, from which the fathers copied the qualified veto power, required the governor to take an oath in which he obligated himself to perform the duties of his office "agreeably to the rules and regulations of the constitution and the laws of the commonwealth." There was no precedent in any then existing state constitution for expressly binding the executive in his oath of office to defend the Constitution without mentioning his duty to enforce the laws. It is a reasonable inference that the framers of the Constitution intended to impress the President with the belief that his obligation to defend the Constitution was more binding upon him than his duty to enforce the laws enacted by Congress.
In the foregoing discussion it has been shown that political authority was unequally divided between the various branches of the government; to the extent that this was the case the framers of the Constitution did not adhere consistently to the theory of checks. But in this, as in other instances where they departed from precedents which they professed to be following, they were actuated by a desire to minimize the direct influence of the people. If the Constitution had been framed in complete accord with the doctrine of checks and balances, the lower house of Congress as the direct representative of the people would have been given a veto on the entire policy of the government. But this, as we have seen, was not done. The more important powers were placed under the exclusive control of the other branches of the government over which it was believed public opinion would have but little influence. This deprived the people of the unlimited negative to which they were entitled even according to the theory of checks. Richard Henry Lee did not greatly exaggerate then when he said: "The only check to be found in favor of the democratic principle, in this system, is the House of Representatives, which, I believe, may justly be called a mere shred or rag of representation."[121] Nor was Mason entirely mistaken when he referred to the House of Representatives as "the shadow only" and not "the substance of representation."[122]
It may be thought, even though the Constitution does not give the House of Representatives a direct negative on all the important acts of the government, that it does so indirectly through its control over the purse. An examination of the system with reference to this question, however, reveals the fact that the control of the House over taxation and expenditure is narrowly limited. A revenue law is subject to no constitutional limitation, and when once enacted remains in force until repealed by subsequent legislation. Assuming that a revenue system has been established which is sufficient for the needs of the government, the House can exercise no further control over income. It can not repeal it, or modify it in any way without the consent of the President and Senate.
Turning now to the matter of expenditure, we find that the Constitution allows permanent provision to be made for the needs of the government, with the single exception of the army, for the support of which no funds can be appropriated for a longer period than two years. The policy of permanent appropriations has not yet been applied to the full extent permitted by the Constitution, but it has been carried much further than a consistent adherence to the doctrine of popular control over the budget would warrant. The practice could easily be extended until every want of the government except the expenses of the army, even including the maintenance of the navy, had been provided for by permanent appropriations. And it may be added that with the increasing desire for stability which comes with the development of vast business interests, the tendency is strongly in that direction.
Let us suppose that some political party, for the time being in control of the law-making power of the government, should extend the practice of making permanent appropriations to the extreme limit allowed by the Constitution. This would relieve the administration of all financial dependence upon public sentiment except in the management of the army. And if, as the framers of the Constitution contemplated, the President and the Senate should represent the minority, the administration might for years pursue a policy to which public opinion had come to be strongly opposed. For with the system once adopted its repeal could not be effected without the concurrence of all branches of the law-making authority. The President and Congress could, in anticipation of an adverse majority in the House, guard against the withdrawal of financial support from their policy by simply making permanent provision for their needs. Our present system would permit this to be done even after the party in power had been overwhelmingly defeated at the polls, since the second session of the old congress does not begin until after the members of the new House of Representatives have been elected.[123] This would tie the hands of any adverse popular majority in a succeeding congress and effectually deprive it of even a veto on the income and expenditure of the government, until such time as it should also gain control of the Presidency and the Senate. But this last could never have happened if the practical working of the Constitution had been what its framers intended. Whatever control, then, the majority may now exercise over taxation and public expenditure has thus been acquired less through any constitutional provisions intended to secure it, than in spite of those which seemingly made it impossible.
Equally significant was the failure of the Convention to make any adequate provision for enforcing publicity. The Constitution says "a regular statement of the receipts and expenditures of public money shall be published from time to time," and also that "each House shall keep a journal of its proceedings, and from time to time publish the same, except such parts as may in their judgment required secrecy."[124] That these provisions were of little practical value is evident from the fact that they contain no definite statement as to when and how often the accounts and journals are to be published. The phrase from time to time was susceptible of almost any interpretation that either house of Congress or the President might wish to give it, and could easily have been so construed as to justify a method of publication which gave the people but little information concerning the present state of public affairs. The framers of the Constitution did not believe that the management of the government was in any proper sense the people's business; yet they realized that the people themselves took a different view of the matter, which made some constitutional guarantee of publicity necessary. It was, however, the form rather than the substance of such a guarantee which the Constitution contained.