The federal executive

Preface

Even since 1903, when this book was started, manyimportant changes have occurred in the Federal Executive. In 1903 there was no single book that adequately treated the President's Cabinet and the executive departments. Since then several books on aspects of this general subject have been written. With a few exceptions (notably Dr. Learned's admirable book on The President's Cabinet, Dr. Fairlie's The National Administration, and Mr. Haskin's The American Government), these are merely compilations from the annual reports of the heads of the executive departments, and other government publications. The development and delimitation of the functions of the Executive are an index of the growth of the Federal Government. Much remains to be written about it. In 1903 I was Assistant in Government in two courses given at Harvard by Professor Frederic J. Stimson and the Honorable Charles S. Hamlin dealing with American Government. In 1905 I gave seven lectures at Johns Hopkins for Dr. W. W. Willoughby on "The Executive Administration of the United States"; in the spring of 1912, at Goucher College, three lectures on the " Creation and Development of the Cabinet" ; and in November, 1912, two lectures at the University of Virginia, one on "The Growth of the Cabinet-Council Idea in the Federal Executive" and vi PREFACE

the'other on " The Department of Justice." The purpose of this book, based upon the above lectures, is to add a little to the studies on the subject and to assist in an understanding of the creation, development, organization, and functions of the Federal Executive. To-day, the population of the United States is 101,208,315, exclusive of Alaska and the insular possessions. These people and their vast riches are not adequately protected from foreign interference. A thorough understanding of the Federal Government of to-day is the first step toward proper National Defense.

John Philip Hill.

3 West Franklin Street, Baltimore, February, 1916.

Contents

I. The Federal Government 1

II. Creation of the Executive Departments and the

Cabinet 12

Chapter I

Lord Bryce, in his introduction to the most recent edition of "The American Commonwealth," says, "Thoughtful Europeans have begun to realize, whether with satisfaction or regret, the enormous and daily increasing influence of the United States." Most Americans are so occupied with the myriad interests that are creating this enormous and increasing power that they do not realize the great changes that are going on in the Government of the United States itself. In October, 1914, the American Bar Association celebrated at Washington the one hundred and twenty-fifth anniversary of the Supreme Court. In this century and a quarter, although the questions with which it deals are somewhat different from those it considered in 1789, the organization and functions of the Supreme Court have not changed. Should a celebration be held of the one hundred and twenty-fifth anniversary of the creation of the Federal Executive, most of the celebrants would be amazed at a realization of the changes that have taken place in the National Administration since General Washington first became President.

The Chevalier de Pontgibaud (Marquis de More), who had served through the Revolution as aide-decamp to the Marquis de Lafayette, revisited the United States a few years after the institution of the Federal Government. He recorded: ^ —

"The Government officials were as simple in their manners as ever. I had occasion to call upon Mr. McHenry, the Secretary of War. It was about eleven o'clock in the morning when I called. There was no sentinel at the door, all the rooms, the walls of which were covered with maps, were open, and in the midst of the solitude I found two clerks, each sitting at his own table, engaged in writing. At last I met a servant, or rather the servant, for there was but one in the house, and asked for the Secretary. He replied that his master was absent for the moment, having gone to the barber's to be shaved. Mr. McHenry's name figured in the State Budget for $2000 (10,500 francs), a salary quite sufficient in a country where the Secretary for War goes in the morning to his neighbor, the barber at the corner, to get shaved. I was as much surprised to find all the business of the War Office transacted by two clerks, as I was to hear that the Secretary had gone to the barber's."

Should the Chevalier visit the War Department and the other executive departments of the Government to-day, he might find the government officials as simple in their manners as before, but he would find a very different War Office and a very different Federal Executive from that which so surprised him in the early days of the ^ A French Volunteer of the War of Independence, p. 124.

Republic. The change in the Federal Executive is one of the most remarkable things in the history of the nation. Let us consider for a moment the status of one of the executive departments then and now. Nothing more strikingly illustrates the growth of the Federal Government and the development of the Cabinet and the executive departments than the history of the attorney-generalship.

The first Attorney-General of the United States, Edmund Randolph, of Virginia, spoke of himself as "a sort of mongrel between the State and the United States; called an officer of some rank in the latter and thrust out to get a livelihood in the former." ^ Even as late as 1817, Secretary of State Monroe called attention to the fact that the Attorney-General had at the seat of the Federal Government "no apartment for business, no clerks, nor a messenger, nor stationery or fuel allowed. These have been supplied by the officer himself at his own expense." ^ Elbridge Gerry, of Massachusetts, and other jealous guardians of the rights of the States, fearful of the power of the newly created Federal Executive, provided Washington with only three advisers who were heads of executive departments, the Secretaries of State, Treasury, and War, but from the first the Attorney-General was considered a member of the advisory council composed of these three Secretaries and himself, which has come to be recognized as the President's Cabinet. Yet,

1 E. M. D. Conway, Omitted Chapters, p. 135.

2 Annals of Congress, 14th Cong., 2d Sess. (1816-17), pp. 699 and 700.

although considered a member of Washington's first Cabinet, Randolph was not the head of an executive department, and was not even required to reside at the Capital. His powers were insignificant and his compensation so small that he was expected to support himself from his private practice. The power and functions of the present head of the Department of Justice, if they could be known to the Anti-Federalists of Randolph's time, would cause those eminent gentlemen to turn in their graves.

The fiftieth Attorney-General no longer suffers for lack of an apartment for business and a clerk, but he is the head of the great Department of Justice, the total number of whose officials and employees is about 5700,^ of which number 2070 are appointed by him. The Solicitor-General, the Solicitor of the State Department, the Solicitor of the Treasury, numerous assistant attorneys-general, attorneys, and special attorneys in Washington, numbering more than 300, 86 district attorneys, and numerous special assistants, assistant district attorneys, and other officials, are at present under the direction of that Attorney-General, who in the days of President Monroe had neither stationery nor fuel.

Kipling tells us that in the twilight of the Magic Jungle, in a sort of singsong to little Mowgli, old Baloo recited, —

"As the creeper that girdles the tree-trunk, The law runneth forward and back." ^

^ Register of the Department of Justice, 1915. * Second Jungle Booh.

And so, in anti-trust prosecutions, in the crusade against the white slaver, in the enforcement of pure-food laws, in interstate commerce cases, in the suppression of fraudulent use of the mails, the power of the Attorney- General runs forward and back throughout all the States of this great Union, and the activities of the Department of Justice wipe out state lines and from year to year increase the power of the Federal Government and its Executive, of whose growth they are the most striking illustrations. j/'

The growth of the executive power has attended the growth of the nation, and its development into its present importance has been necessitated by the fusion of the federation of States into a strongly centralized American nation. To follow in detail the changes in the organization of the executive departments, and to examine the methods and reasons of these changes would take us far into the life history of the Republic.

In 1890, John Fiske wrote: "In signing or vetoing bills passed by Congress the President shares in legislation, and is virtually a third house. In his other capacities he is the chief executive officer of the Federal Union; and inasmuch as he appoints the other great executive officers, he is really the head of the executive department, not — like the governor of a State — a mere member of it." ^ In 1908, Woodrow Wilson compared the President, as the makers of the Constitution intended him to be, with what he had actually become. "His veto upon legislation was his only 'check' on * Ciml Government in the United States, p. 232.

Congress, — was a power of restraint, not of guidance. He was empowered to prevent bad laws, but he was not to be given an opportunity to make good ones. As a matter of fact, he has become very much more. He has become the leader of his party and the guide of the nation in political purpose, and therefore in legal action." ^ The theory expressed by Professor Wilson in 1908 has been the practice of President Wilson as Chief Executive, and as a "third house" of the legislative department he has certainly not confined himself to the powers of the "third house" as described by Fiske. The Federal Executive has outgrown, naturally and properly, the bounds ascribed it by the makers of the Constitution.

The Executive, as it exists to-day, is one of the most important elements in the life of the nation. To understand the meaning of the national life a knowledge of the Cabinet and of the organization and work done by the Executive Departments is necessary, and while much has been written of the executive power, little has been written upon the administrative side of the Executive, as carried out by the departments. As President Wilson remarks, " It is easier to write of the President than of the Presidency." ^ The voluminous reports of the heads of the departments, the provisions of the various statutes of the United States relating to the departments, miscellaneous reports, congressional and department records, all set forth the business that the great govem-

1 Constitutional Government in the United States, p. 60.

mental corporation conducts. They also show in detail the methods by which this business is carried on. From them the student may learn how the State Department settles the rights of some naturalized citizen who desires to revisit his former country, but who is claimed by that country to be liable for military service, or how the Republic of Panama sprang into life and American domination of the Isthmus was secured. In the same way the methods of customs collections and post-office establishments may be learned. A knowledge of these matters is essential to an understanding of daily newspaper discussions, reports of the debates and actions of Congress, and of the position of the Government. After a brief discussion of the creation and status of the executive departments, it is my purpose to set forth the organization of these departments, and to indicate the matters with which they deal and their methods of work.

Before doing this, however, it may be well to say a few words about the Federal Government generally. In the rush of our American life it is amazing how much we can forget, and I shall be pardoned for speaking briefly of things that we are all supposed to have once and for all time learned in the schoolroom.

During the Revolutionary War, the common interests of the allied colonies, almost exclusively the carrying-on of the war, were entrusted to the Continental Congress. This body, possessing theoretically little power, exercised, however, the greatest real power over the allied colonies. It combined in itself only the legislative and executive functions, for at that time there did not exist and there was no necessity for any common judicial system for the allied sovereignties that later became States of our Union. The executive functions of the Continental Congress were exercised through its various committees and officers, but furnished httle of permanent value to the American political system. After the Revolution the government of the allied States under the Articles of Confederation for a time gave to the former colonies a more permanent and stronger common life, but that weak Government soon gave way to the present Constitution under which the nation has attained federal life and power.

We learned in school that the Federal Government of the United States consists of three coordinate and theoretically independent branches, the executive, legislative, and judicial. We all know in a general way that the Congress makes the laws and that the Executive and the courts carr^^ them out. The States' rights men in the Constitutional Convention were extremely jealous of the power of the Executive, and I shall show you in the coming chapters that they, as States' rights men, were justified in their fears, for to-day, while the express train and the telephone have eliminated state lines for all commercial purposes, the effect of recent legislation is to efface state lines for many administrative purposes. Before taking up the executive branch of the Federal Government, it will be well to glance at the Government as a whole.

The Executive consists of the President, and, potentially, the Vice-President, — who, aside from the fact that he presides over the Senate, has no place in the Government, — and the ten members of the President's Cabinet, The Cabinet, as such, is not known to the Constitution. The legal status of its members arises from Llu-'ir being heads of the executive departments, and after all they are legally only arms of the President. The power of the President and his place in the national life is quite different to-day from the conception of that office held by the framers of the Constitution. They planned a Chief Magistrate, non-partisan, calm and aloof from the throbbing political questions that might agitate the legislative branch of the Government. Above the turmoil of political parties the President was dispassionately to carry out the laws in much the same non-political manner as the Chief Justice was to head the Judiciary. There were certain common interests that drew the thirteen States together: they wished to provide by the Constitution only for the needs as they saw them then — an army for external use, a diplomatic service, also for external use, and a treasury to get money for the above external uses. The framers of the Constitution did not dream that to-day the President would be the leader of the dominant political party in the nation ; they did not dream that he would be the one man in the nation primarily responsible to the people for the enactment into laws of their will; they did not dream that the Chief Magistrate of the new Republic would exercise in time the combined powers of the English King and his Prime Minister; but then they did not dream that one arm of the President would be a

Secretary of Labor, whose duties would run into the domestic and industrial life of each of their jealously guarded States. The creation of a Department of Labor in 1913, one hundred and twenty-four years after the inauguration of the Federal Government, for the purpose of fostering, promoting, and developing the welfare of the wage-earners of the United States, improving their conditions, and advancing their opportunities for profitable employment regardless of state lines, is the farthest point in the development of a strongly centralized Federal Government. At the same time it is but an indication of the enormous increase in the power of the Executive. Alexander Hamilton and the Federalists would find this increased power of the President quite to their liking, but the President of to-day is a more powerful factor in the Federal Government than even they dared expect in 1789. Party organization and the machinery of legal primary elections were not thought of in the days when President Washington gravely and with due decorum considered the status of his Cabinet and kept the Vice-President out of it; but neither were express trains and telephones. We find the latter extremely convenient and the nation no longer fears the power of the President.

Besides the Executive there are to-day in the framework of the Federal Government two other branches. With the Judiciary this book will have little to do. As to the other branch of the Government, the Congress of the United States, it is only necessary to say that, while it theoretically makes the laws, more and more in these days of the political leadership of the President, in much important legislation Congress merely enacts into law the principles that the majority party has declared in its platform. The Judiciary and the legislative branch of the Government have departed little from the theories of the Fathers. There are more courts and the Congress is larger, but the fundamental concepts of neither have greatly changed. Congress makes a greater number and more far-reaching laws, but its machinery is the same. The courts try more cases of a more far-reaching character, but their machinery is the same. The Executive has changed. In the coming years it will change more. Seats in Congress for the members of the Cabinet may come in time, and we may have places in the legislative department for arms of the Executive for which the Constitution does not specifically provide. The development of the Cabinet and the executive departments is the most interesting thing in the growth of the Federal Government. Let us see on what basis and out of what they were created.

Chapter II Creation Of The Executive Departments And The Cabinet

The executive business of the United States has, since the organization of the Government, been carried on by the executive departments, which have been increased from time to time as the requirements of the Government demanded. The Departments of State, the Treasury, and War were created by the First Congress in 1789, and the Department of the Navy was established soon after. The Post-Office and the Department of Justice had their beginnings in the same period, although they did not take rank as executive departments till much later. The Department of Commerce and Labor, created in 1903, the Department of Labor carved from it in 1913, with the Agricultural and Interior Departments, belong to the latter half of the history of the nation. There are to-day ten coordinate executive departments.

The Constitution provides that "the executive power shall be vested in a President of the United States of America." ^ It then proceeds to declare the length of time the President shall hold office, the method of his election and the qualifications of a President. The section contains no specific enumeration of the executive power conferred. Goodnow, in his treatise on "Com- 1 Art. n, par. 1.

parative Administrative Law," ^ says that these words *' executive power" meant "that the President was to have a mihtary and poHtical power rather than an administrative power. The meaning of these words is further explained by the enumeration of the specific powers which were granted to the President by the Constitution. These are the same powers possessed by the governors of the Commonwealths. They are the power of military command, the diplomatic power, the limited veto power, the power of pardon, the power to call an extra session of Congress, to adjourn it in case of a disagreement between the houses, and the power to send a message to the Congress. The general grant of the executive power to the President means little except that the President was to be the authority in the Government that was to exercise the powers afterward enumerated as his. The only other enumerated power is an administrative power, and it is also the only purely administrative power that is mentioned clearly in the Constitution. This is the power of appointment. . . . Beyond the power of appointment he had, so far as the express provisions of the Constitution were concerned, no control over the administration at all."

The complex system of executive departments is not provided by the Constitution. It has arisen by acts of Congress, a slow and often tentative construction, provided as the national interests became more varied and far-reaching, and the needs of administration became more exacting. Our form of government is that denomi- 1 Vol. I, p. 62.

nated as rigid because of its foundation on a written instrument; but like many of our governmental institutions that are the product of gradual evolution, the law regulating the proceedings of the executive departments, and the relations of the Cabinet to the President and Congress, is the law of the unwritten Constitution. ^

The Constitution provides that the President "may require the opinion in writing of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices." ^ The only other mention of the executive departments in the Constitution follows the provision for appointment by the President, with the consent of the Senate, of all officers of the United States whose appointments are not otherwise provided for by the Constitution. By this clause of the Constitution " Congress may by law vest the appointment of such inferior officers as they think proper in the President alone, in the Courts of Law, or in the heads of departments." ^ Upon this meager foundation have been created all ten great organizations that to-day administer the domestic and foreign business of the United States.

The Articles of Confederation, which preceded the Constitution, contained no provision for any executive departments, and the President of Congress under the Confederation was in no sense an executive head of the Government; yet the Continental Congress and the Congress under the Confederation had been compelled

^ Woodburn, American Republic, p. 191.

2 Art. II, sec. 2, clause 1. * Ibid., clause 2.

to create some sort of executive machinery for carrying on the struggle for independence, and for conducting the business of the weak Union that was formed after the peace with England. When, on April 1, 1789, the First Congress under the Constitution was organized in Federal Hall in New York, and settled down to the task of providing for the organization of the Government, it found some models for the executive department. There was a bureau of foreign affairs, and a bureau of war, each under the direction of an officer denominated a secretary. There was also a board of commissioners in charge of the Treasury, and a postmaster-general, whose duties were similar to those exercised by that officer under the colonial regime.

Congress was further aided by the knowledge possessed by many of its members of the discussions that had taken place in the Constitutional Convention, where, among others, a plan had been proposed (August 20, 1787) by Gouverneur Morris for a council of state, among whose members he named a Secretary of Commerce and Finance, and another officer v/ho was to have charge of agriculture, manufactures, and kindred matters, under the title of Secretary of Domestic Affairs. ^ There had also been much general discussion of the subject, and many opinions expressed. One of the most interesting of these appears in a letter, written in 1788 by Commodore John Paul Jones, in which he tells the Marquis de Lafayette that "had I the power I would create at least seven ministries in the primary organiza- ' Documentary History of the Constitution.

tion of government under the Constitution. In addition to the four already agreed upon, I would ordain a Ministry of Marine, a Ministry of Home Affairs and a General Post-Office; and as commerce must be our great reliance it would not be amiss to create also as the eighth a Ministry of Commerce." ^ Congress, however, was dominated by no such broad spirit as that expressed by the great sea captain.

State jealousy of the central power operated against the creation of any more departments than were actually necessary; and after much debate in the House, where the subject was first introduced by Elias Boudinot.. a former President of the Continental Congress and a member from New Jersey, it was decided that there should be but three departments. These were to be Foreign Affairs, Treasury, and War, each with a secretary in charge of its work.

Although the proper management of the finances was the most pressing need, and the creation of a Treasury Department had been proposed by Boudinot as the first department, the difficulties of its organization proved greater than those of any other department, and the Department of State was the first to be created. On July 27, 1789, the Senate and House of Representatives provided for its organization by passing "an act for establishing an Executive Department to be denominated the Department of Foreign Affairs." ^ This fundamental

1 Original manuscript in the archives of the Congressional Library.

act provided for an executive department whose principal officer should be called the Secretary of Foreign Affairs, and who should perform and execute such duties as should from time to time be enjoined on or entrusted to him by the President relative to "correspondences, commissions, or instructions to or with public ministers or consuls from the United States, or to negotiations with public ministers from foreign States or princes, or to memorials or other applications from foreign public ministers or other foreigners, or to such other matters respecting foreign affairs as the President of the United States shall assign to the said department."

The duties of this department were confined entirely to foreign relations, and closely approximated those of the Secretary of the Department of Foreign Affairs under the Confederation. Its descent from the old department was indicated by the provision of the act by which the Secretary of the new department was given custody of the records, books, and papers in the office of the Secretary who had had charge of Foreign Affairs under the Confederation. The department did not long retain its character as dealing exclusively with foreign affairs. Administrative functions of a very diverse and heterogeneous nature were added almost immediately upon the original founding of the department, for within two months was passed an act ^ providing for the safekeeping by the secretary of this department of the acts, records, and seal of the United States and also for the publication and authentication under his authority of 1 September 15, 1789. 1 U.S. Stat. L. 68.

the laws passed by Congress. Thus, to the duties of the Foreign Secretary were added duties analogous to those of Keeper of the Great Seal of England. To indicate this new province, it was provided that the department should thereafter be denominated the Department of State, and that its principal officer should thereafter be called the Secretary of State. The department, though shorn of some of its miscellaneous functions, remains to-day substantially the same as when it was created, but its organization has kept pace with the growth that has followed the marvelous expansion of the national interests. The establishing act provided for the secretary, one inferior officer to be called the chief clerk, and assistant clerks. To-day there are three assistant secretaries, and numerous clerks and assistants of various sorts.

The Secretary of the Treasury takes rank immediately after the Secretary of State, but the Department of War was the second department in order of creation. On the 7th of August, 1789, was passed the "act to establish an Executive Department to be denominated the Department of War." ^ The secretary of this department was to perform and execute such duties as should be entrusted to him by the President "relative to military commissions, or to the land or naval forces, ships or warlike stores of the United States, or to such other matters respecting military or naval affairs as the President of the United States shall assign to the said department, or relative to the granting of lands to persons , 1 1 U.S. Stat. L. 49.

entitled thereto, for military services rendered to the United States, or relative to Indian affairs."

As in the case of the State Department the new Department of War was named as the depository of all books and records in the office of the Secretary for the Department of War, established under the Confederation of the "United States in Congress assembled." The organization of the department followed that of the Department of Foreign Affairs, and it was placed under the charge of a Secretary of War.

The creation of the Departments of State and of War was accomplished with comparative ease, but it was not until September 2, 1789, six weeks after the creation of the first department, that the act was passed for the establishment of the Treasury Department. The "Annals" of Congress ^ show the diversity of opinion that existed as to the organization of the department and the opposition from certain quarters to the substitution of a single secretary for the board that had directed the Continental finances.^ The war with England had left a great burden of debt upon the young nation, and its management presented momentous problems. The Constitution provided for the collection of revenue from various sources, but was silent as to the measures to be employed. No aid of any great value was to be derived from the methods employed under the Confederation, for the lack of power to raise money had been the fatal