THE POWER OF THE PRESIDENT TO DIRECT ACTION of members The members of the cabinet occupy a dual position. They are Dual position officers of the United States having specific duties to perform, of cabinet which are minutely defined by the statutes creating the offices they occupy. They are also confidential subordinates of the president. As has been shown, the heads of the departments are appointed by the president with the advice and consent of the Senate, and are removable only by the president except in case of impeachment. At the same time it must be remembered that like the president they are officers of the United States and possess very definite duties and powers. Their theoretical position was thus stated by the Supreme Court in 1838: There are certain political duties imposed upon many officers in the Position as stated by the executive department, the discharge of which is under the direction of court the president. But it would be an alarming doctrine that Congress cannot impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the Constitution; and in such cases, the duty and responsibility are subject to the control of the law, and not to the direction of the president. And this is emphatically the case, where the duty enjoined is of a mere ministerial character.1 Nearly a generation later John Sherman, himself a former Secretary of the Treasury, thus stated the power of the president to direct and control the actions of his subordinates: The president is intrusted by the Constitution and the laws with important powers, and so by law are the heads of departments. The president has no more right to control or exercise the powers conferred by law upon them than they have to control him in the discharge of his duties. It is especially the custom of Congress to intrust to the Secretary of the Treasury specific powers over the currency, the public debt, and the collection of the revenue. If he violates or neglects his duty he is subject to removal by the president, or impeachment by the House of Representatives, but the president cannot exercise or control the discretion reposed in the Secretary of the Treasury, or in any head or subordinate of any department of the government.2 1 Kendall v. United States, 12 Peters, 524, 610. Position as statesmen stated by In actual practice president through Although the opinion of the court and the logical argument of Mr. Sherman set forth the legal theory, the practice of the government has been far different. As has been shown, the president possesses the power of appointment and removal of of all cabinet all officers except the judges. Although this power of removal power of removal may direct action officers Technically two classes of cabinet officers has been technically and formally invoked against cabinet officers only twice,1 yet resignations, transfers, and promotions have accomplished the same result. In fact, at the very time when the court was asserting the inability of a president to direct the head of a department, President Jackson by a series of removals was vindicating his right to impose his policy upon the Secretary of the Treasury. Although the Senate refused to confirm the appointment of Taney (the secretary who finally carried out Jackson's policy) and passed a vote of censure upon the president, yet the success of the president so clearly showed his resources that his power has never since been questioned. So clearly was this recognized that Congress, in order to insure the sympathetic administration of its reconstruction policy, passed the Tenure of Office Act to prevent the removal of Stanton and the appointment of someone else more compliant with the directions of the president. The speedy amendment and final repeal of the act have now restored the president to the position he formerly occupied. The members of the cabinet are sometimes divided into two classes, a division based upon the relation to Congress shown in the acts which create their offices. The Treasury and Post-Office Departments were organized without reference to presidential control, and their heads report to Congress directly. In the Departments of State, War, and Navy the power of presidential direction is recognized, and it is implied in the other departments. Certain secretaries of the Treasury and some writers have professed to see in this difference a wider measure of independence of presidential control for the Secretary of the Treasury and the Postmaster-General than exists for the other officials. Although this may be technically true, practically there has never been any difference as to the power of the president of president to enforce his will upon any of the heads of the departments, 1 M. L. Hinsdale, A History of the President's Cabinet, p. 223. Practically both subject to direction and it is significant that the triumph of Jackson came at the expense of a Secretary of the Treasury. of duties per cabinet officers Each cabinet official occupies a dual position and performs Two classes two kinds of duties: One class which may be called political is formed by absolutely under the direction of the president, and there is no power which can interfere with such actions. But there are other acts, duties which are prescribed by statute and known as administrative or ministerial acts, of which the courts will take judicial notice and may compel action. In the great decision of the Marbury case, Marshall laid down the clear distinction between these classes which has been followed ever since. At the close of the administration of John Adams certain commissions which were already signed had not been delivered. William Marbury, to whom a commission for a justiceship in the District of Columbia had been issued, attempted, by a writ of mandamus, to compel the Secretary of State, Madison, to deliver the commission which was withheld at the direction of President Jefferson. A clearer case of conflict could hardly be imagined, for of all the cabinet officers the Secretary of State has the closest relation to the president and is most subject to his control. Was the delivery of the commission a discretionary and political duty or purely an administrative and ministerial one, not subject to the direction of the president? Although the writ was not granted for want of jurisdiction, yet Marshall in an obiter dictum held that the contention was a proper one which might be upheld in a proper court. His reasoning is as follows: discretionary acts the decision of the executive By the Constitution of the United States, the president is invested In political or with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority, and in conformity with his orders. In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect_the_nation, not individual rights, and being intrusted to the executive, the decision of the executive is conclusive. .. is conclusive For ministe rial acts the executive is responsible at law Discretionary acts examinable only politically Ministerial acts examinable by the courts Power of president may force a dilemma But when the legislature proceeds to impose on that officer [the Secretary of State] other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law; is ' amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others. The conclusion from this reasoning is that where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the president, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy.1 In 1866 the court gave the following briefer yet more comprehensive definition of ministerial duties: A ministerial duty, the performance of which may, in proper cases, be required of the head of a department, by judicial process, is one in respect to which nothing is left to discretion. It is a simple, definite duty arising under conditions admitted or proved to exist, and imposed by law.2 The rule appears to be that over discretionary or political acts the courts will take no jurisdiction. The president is responsible to the electorate, not to Congress nor to the courts. Nor will the courts take any cognizance of the discretionary or political acts of the subordinates; they are responsible solely to the president and carry out his directions. With regard to ministerial duties, however, another condition prevails. These acts are required by law, and the courts will by appropriate means compel their performance even against the orders of the president. Yet since the president has in his hands the absolute and unrestricted power to remove any officer, he may place his subordinates in the uncomfortable dilemma of facing either a legal prosecution or removal. The most extreme statement of the president's power is found in the following opinion of AttorneyGeneral Cushing, who in 1855 wrote: 11 Cranch, 137, 165, 166. 2 Mississippi v. Johnson, 4 Wall. 475, 498. statement of I hold that no head of a department can lawfully perform an official Extreme act against the will of the president, and that will is by the Constitution president's to govern the performance of all such acts. If it were not thus, power Congress might by statute so divide and transfer the executive power as utterly to subvert the government and change it into a parliamentary despotism like that of Venice or Great Britain, with a nominal executive chief or president utterly powerless-whether under the name of Doge or King or President would then be of little account so far as regards the maintenance of the Constitution.1 The so-called elastic clause of the executive article which directs the president to take care that the laws be faithfully executed increases the power of the president to direct the action of other departments. For example, in the Debs case2 it was held that he might direct the use of United States troops to facilitate the transportation of the mails and interstate commerce, and in the Neagle case3 that the president might take means for which no law existed to protect the judges in the exercise of their functions. Other examples might be cited to show that the responsibility for the enforcement of the law enables the president to control at his discretion and to a very large degree the action of all officers. With the increased size of the cabinet and the rapid and vast extension of governmental activities the president's ability to direct and control has necessarily somewhat declined. The very multiplicity of public business makes it impossible for any one person to assume direction over the whole field. Consequently, more and more, the departments are becoming selfcontained, and as the president's knowledge of what is being done diminishes, his control declines. Yet at any moment a matter decided by a department head in the ordinary routine of the business of his department may become a matter of public concern and require presidential action. At such times it becomes evident that although the constancy of the control has diminished, the power to reverse or overrule remains.1 1 J. A. Fairlie, The National Administration of the United States of America, p. 19, quoting 7 Atty-Gen. Opin. 453, 470. 2 See p. 60. 3 See p. 178. In 1913 the Attorney-General consented to the postponement of the trial of a criminal case in California. The United States District Attorney in charge of the prosecution resigned by way of protest. Public opinion became excited, and President Wilson, after discussion of the matter in cabinet meeting, directed that the prosecution should continue. Increased size of cabinet limits president's per sonal control |