Government in the United States, National, State and Local

by James Wilford Garner

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.