ing addi power opinion so that Congress will pass the desired law. To refuse (1) by refusto follow the accredited leader would savor too much of mutiny tional and would furnish too good a point of attack for opponents. executive Not so with bills designed to increase the purely executive power. Here, as was seen in 1918 in the case of the Overman Bill, framed to allow the president to alter and combine the various executive agencies for the more efficient prosecution of the war, even the members of the president's own party felt safe in attacking the measure on the ground that it involved an unwise extension of the executive power. Congress may also thwart the president and control his action by the passage of legislation requiring the adoption of a certain policy or directing the performance of certain acts. It is true that the president's approval must be secured for the legislation unless Congress is prepared to override his objections, but oftentimes such directions are found in a section contained in a measure otherwise satisfactory. Rather than lose the advantage of the whole piece of legislation, the president may accept the objectionable clause. The executive departments of the government are all founded upon acts of Congress not always wisely conceived. Thus President Taft disapproved of the creation of the Department of Labor; and President Wilson has been greatly hampered by the rigid legislative distribution of functions in many departments and bureaus. What Congress has enacted only Congress can repeal. President Roosevelt, however, circumvented congressional action in the case of the Panama Commission by vesting all the authority in Colonel Goethals and ordering the two other commissioners to follow his directions. (2) by refus ing to pass legislation priation bills Appropriation bills give Congress an opportunity to review (3) by approthe acts of the executive departments. This review may be searching, conducted in good temper, and may disclose the necessity for improvements. It may, on the other hand, degenerate into petty criticism and personal attacks. Of such a nature was the Army Appropriation Bill of 1912, which contained a clause which was designed to prevent General Wood, though he was not mentioned by name, from again becoming Chief of Staff in the army in time of peace. The Sundry Civil [Riders] (4) by impeachment In recent years the executive is stronger than the legislature Appropriation Bill of 1913, already mentioned, was an obvious attempt to control executive action. In the bill was a proviso that none of the money granted should be used for the prosecution of labor or agricultural organizations on account of alleged violations of the anti-trust laws. Both these bills were vetoed by President Taft, and Congress was forced to remove the objectionable clauses. Appropriation bills again attempt to control executive action by including provisions for general legislation. This practice of attaching riders has already been discussed. On the whole it may be asserted that in a struggle between the president and Congress over a general appropriation bill carrying riders, the president will win. Lack of appropriations would stop the wheels of government, which is unthinkable. Consequently resolutions omitting the controversial matter are passed, and the president wins the point temporarily. The pressure of opinion generally comes to his aid, and Congress drops the obnoxious clause. The contention, however, may be revived as a separate measure with somewhat better chance of success. The last and last-used means of control is impeachment. Impeachment of the president for the use of his executive powers in a manner displeasing to Congress is almost impossible politically. Impeachment of subordinates for anything less than a serious crime is unthinkable. As Lord Bryce has well said, "a steam hammer is not used to crack nuts.” Comparing the relative powers of the executive and legislative departments, it may be asserted safely that the president overshadows Congress. Lord Bryce in 1888 wrote of the president that "he is strong for defense if not for attack."2 Recent experience has proved, however, that the president, through emphasizing his position as the leader of his party, has become strong enough to force his will upon even the most recalcitrant members of the party. The administrations of McKinley, Roosevelt, Taft, and Wilson, covering over a quarter of a century, give ample evidence of the changed position of the president. These four presidents had most divergent characteristics and personalities, and made very different kinds of popular 1 See p. 219. 2 American Commonwealth (rev. ed.), Vol. I, p. 226. appeal, but they had this in common they all dominated Congress and obtained from it, often after a struggle, practically all they desired. That this should be true of the administrations of McKinley and the second administration of Wilson is not remarkable, for during these terms the United States was engaged in war. Nor is it strange that the Democratic party supported President Wilson in his first administration, for the Democrats had wandered in the wilderness for sixteen years and came to power pledged to a very definite program. But in the administration of President Taft a very different condition existed. The President, by temperament, habit, and training, would be expected to maintain the old constitutional relations which existed in previous administrations. At the end of the long session of his first Congress he had forced through every measure he demanded. "No such array of 'inspired' or dictated legislation had ever issued from the halls of Congress as that passed in June, 1910." This was the more to be wondered at because the Republican party had already shown unmistakable signs of the split which was to divide it. It should be remembered and emphasized that this legislation was not personal but was the passage of laws demanded by strong popular opinion. It was the president as spokesman of his party dominating Congress rather than the executive usurping the functions of the legislature. Executive enforces laws according to Finally, it should be remembered that every law that is passed by Congress is executed by the president and his subordinates. Congress may grant or withhold powers, may direct the perform- its discretion ance of certain things, but in the application of every law there are numerous questions where judgment enters. Judgment, or the discretionary power, is the prerogative of the executive and is beyond the reach and control of either the courts or Congress. In this sphere and in these acts the president and his subordinates are responsible solely to the electorate. In countries where parliamentary government is established every executive act, whether administrative or political, is subject to the judgment of the legislature, which chooses the executive. In the United States the president, holding office for four years, cannot be questioned 1 J. F. Young, The New American Government and its Work, p. 18. or removed by the legislature except by impeachment, until the expiration of his term. So notwithstanding the constitutional checks upon the legislative power of the president, he is singularly free in the enforcement of the laws. Congress may refuse to pass the legislation desired or deny the appropriations asked for, but once the law is passed or the appropriation made the execution is in the hands of the president. He may be harassed by but he need not fear Congress. He may be forced to forego some parts of his program, but he remains in office free to use his judgment in the execution of the laws and to give the tone he desires to his administration. CHAPTER XV THE JUDICIAL SYSTEM OF THE UNITED STATES 1 It is sometimes incorrectly said that by the article on the judiciary the courts are established as an independent department of the government. Or, to put it more popularly, the Constitution creates the courts. Such is not the case. It is true that the Constitution provides that the judicial power shall be vested in one Supreme Court and in inferior courts, but by this provision the courts do not come ipso facto into existence. The action of both the executive and legislative departments is necessary. In the first place the number and compensation of the justices of the Supreme Court must be determined by Congress and fixed by statute. Even after the statute is passed the president, with the advice and consent of the Senate, must appoint the judges. Thus, since the organization and composition of the court are dependent upon Congress and the president, it is possible for Congress to increase the number of judges, and with the connivance of the president to "pack" the court so that a majority out of sympathy with Congress may be overwhelmed. Or, on the other hand, Congress may, as it did during the administration of Johnson, enact that vacancies should not be filled and thus reduce the number of justices. Such actions, however, would be unconstitutional in the sense that they amounted to a violation of the spirit of the Constitution; but that they would be illegal, in the sense that they were open to punishment, would be difficult of proof. 1 The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office. - The Constitution of the United States, Article III, Sect. i Courts estab lished by Congress |