The national administration of the United States of America

Preface

It is somewhat surprising that there has not been published long ago a comprehensive and systematic work on American national administration, but it must be acknowledged that with all that has been written on our governmental system this part of it has been hitherto almost entirely neglected, except in fugitive and scattered articles on particular phases of the subject. For a long time books on American government dealt only with the Constitution and its judicial interpretation, with special reference to the powers of Congress. Since Mr. Bryce's enlightening work appeared attention has been given to methods of legislative procedure and the influence of parties and party machinery. But the administrative organization and activities of the government have still been hardly mentioned in most works of a general nature.

At the same time the importance of administrative questions is evidenced by the attention given to them in public discussions, in current periodicals and in the volumes that have been published on many special topics. It may indeed be safely asserted that the problems of administration are the important problems of the present; and that they receive the attention which in earlier times was given to problems of constitutional organization. In view of these facts there seems to be a place for a general survey of the whole field of national administration which is presented in this book.

A glance at the table of contents will indicate more definitely the scope of the work. It will be seen that it is not an account of the national government as a whole, but simply of the administrative system. The legislative and judicial branches are vi PREFACE

mentioned only in their direct relations to the executive administration.

Such a study should be of service not only for itself, but also as a model, to some extent at least, for State and local administration. For, with Its defects, the national administration presents an organized system, where responsibility can be fixed and a fair degree of efficiency secured; and contrasts sharply with the disorganized and heterogeneous mass of administrative officials in our states, cities and other local districts. And it may be hoped that an orderly presentation of the national system may have some influence in securing a degree of organization where there is now little but chaos.

In the main the book has been written from the primary official records : the Constitution of the United States, the statutes of Congress, administrative reports and judicial decisions. But I have not hesitated to make use also of statements from unofficial sources written by those who have had opportunity for more thorough observation and investigation in particular branches of the administrative service than is possible for any one person covering so wide a field. And in many matters I have been able to rely on personal acquaintance with the administration in action.

Eeferences at the beginning of each chapter furnish a select bibliography, covering the most valuable and accessible printed material bearing directly on the subjects here considered. These, however, do not include references to all of the original statutes or to the periodical reports of the various departments and bureaus. Additional information may be discovered scattered through the treatises on American history, government and law, and in the volumes of judicial reports of the United States courts. Finally, for a complete study of the national administration, there is a vast accumulation of unpublished records in the archives of the various government offices. An account of these nnpublished records and their location has recently been prepared in the Ckiide to the Archives of the Government of the United States in Washington, by Claude Hal-

PREFACE vii

stead Van Tyne and Waldo Gifford Leland, published by the Carnegie Institution.

Chapters I and II, on the President, have been previously published, in practically their present form, in the Michigan Law Review for December, 1903, and January, 1904.

Contents

CHAPTER PAGE

I. The President— I 1

General Administrative Powers.

CHAPTER I The President— I

Eeferences. — Pomerot: Constitutional Law, 114-118, 531-612. — BuE- GESS: Political Science, II, 216-263. — VoN Holst: Constitutional Law, 82-90, 190-211.— The Federalist: Nos. 67-77.— Goodnow : Comparative Administrative Law, I, 59-74. — B. Harrison: This Country of Ours, 68-180. — James Bryce: The American Commonwealth, I, 38-85.— S. (Jr. Fisher: The Trial of the Constitution, 202- 268. — Grover Cleveland: Presidential Problems. — L. M. Salmon: History of the Appointing Power. — G. N. Lieber: Eemarks on the Army Eegulations; Use of the Army in Aid of the Civil Power. — Atlantic Monthly: 55:826; 85:721; 86:1. — North American Review: 133:464; 144:120, 261. — American Law Review: 31:876. — Political Science Quarterly: 1:163, 533; 3:345. — American Historical Association, Eeport for 1899:65-87.

At the head of the national administration stands the President of the United States. He is elected for a term of four years by an indirect process, nominally through a series of electoral colleges chosen in the different states, in fact as the result of a party contest where the original voters express directly their preference among the candidates, but where the result depends on the system of counting electoral votes, which may give a dominant and excessive influence to a small majority in a few pivotal states. It is not necessary here to discuss in detail the method of election. For, while the formal process is prescribed at some length in the national constitution, the most important features form no part of the national administration, but are regulated by state laws and extra legal political customs.

As this work deals only with the national administration, it 1 " 1 will not consider the entire scope of presidential authority. Those constitutional powers by virtue of which the President may exercise some control over the meetings of Congress and over congressional legislation are omitted as legislative in character ; and the discussion is confined to his powers of an administrative nature.

In the early days of the national government, these administrative powers were of less importance than his legislative powers. This was due in part to the insignificance of the administrative service, and in part to the lack of an effective system of control over the service that was in existence. The same situation had existed in the colonies and in the states before the adoption of the ^national constitution; and it has persisted to a large extent until the present time in the state governments. But in the national government the course of events during the last hundred years has enormously increased the scope and value of the administrative powers of the President. Not only has the national administrative service developed far beyond anything imagined in 1789 ; but at the same time the methods of presidential control over that service have become more clearly recognized, and the means of enforcing that control have been made more and more effective.

The various administrative powers of the President may be considered in two main divisions: On the one hand he has certain general powers over all branches of the national administration: and on the other hand, he has more specific and additional authority over some particular branches of administration. In the first group are included his control over the personnel of the administrative services, through his powers of appointment and removal ; and his authority over the activity of the administrative officers and agents, based on his constitutional power to take care that the laws are faithfully executed, and exercised by the issue of directions and executive regulations. In the second group are included the special authority conferred by the constitutional provisions in reference to foreign relations, the command of the army and navy, and the power of pardon. Each of the administrative powers will be considered in turn,

GENERAL ADMINISTRATIVE POV^ERS

Power of Appointment.— The constitution of the United States provides that the President

' ' Shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers, and consuls, judges of the Supreme Court, and all other ofl&cers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law. But the 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. The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session, ' '

In other clauses, the constitution provides for the election of President, Vice-President, presidential electors, members of the Senate, and members of the House of Kepresentatives. It also gives to each house of Congress the exclusive power to choose its own officers. These positions are, therefore, exempted from the presidential power and entirely beyond his control. The offices to be filled by the President must in most cases be created by law of Congress. Even in the case of the Supreme Court, which is specifically established by the constitution, the number of judges is left to be determined by Congress. In laws creating offices, Congress may, and usually does, fix the length of term (except for the judiciary), and the compensation, allots the powers and duties, and prescribes general conditions. It also decides whether appointments are to be made by the President and Senate, or by the President alone, the courts of law, or the heads of the departments. But in no case can Congress itself take any positive step towards filling an office except those connected with its own organization, nor can it confer the power of appointment upon any one not mentioned in the constitution.^

' United States v. Germain, 99 U. S. 508,

What class of positions come within the term ''inferior officers ' ' has never been carefully defined, and probably cannot be determined with exactness.^ The question has never become serious because Congress has shown no tendency to prescribe any of the alternative methods of appointment, except for distinctly subordinate positions. Thus, not only the heads of the great departments, but also the heads of bureaus and important local officers — such as revenue collectors and postmasters in cities — are appointed by the President and Senate. The number of officers selected by this method has naturally shown a steady increase. In the time of Jefferson the number of presidential offices was about 400 ; at the inauguration of Jackson there were over 600 ; and when Lincoln became President the number was about 1,500. At the present time there are more than 6,000 presidential offices in the civil service, with an aggregate salary of $12,000,000 a year.^

Moreover, the great bulk of these presidential offices hold only for four-year terms, and are thus automatically vacated for new appointments during each presidential term. This system of four-year terms was introduced by the Tenure of Office Act of 1820, which prescribed this period for district attorneys, collectors of customs, and other financial officials. In 1836 the short-term rule was extended by statute to the more important postmasters. And at the present time the four-year period is in practice almost universal, since where it is not applied by statute, it is recognized by the custom of resignations, or may be enforced by the exercise of the power of removal.

" Collins V. U. S. 14 Ct. of Claims, 569. ^See summary in Forum, Vol. 31, p. 25:

State Department, 318 offices, aggregating $ 1,000,000

$11,671,995

THE PRESIDENT— I 5

In exercising this enormous power of patronage, the President is not limited by any legal requirements, established either by statute or by standing executive regulations, governing the qualifications of candidates. The civil service examination system, governing the selection of candidates for subordinate and technical posts, does not affect the positions filled by the appointment of the President and Senate. Indeed, statutory qualifications would probably be considered an infringement on the constitutional grant of the appointing power ; and some have professed to believe that even executive regulations could not be applied to positions of this kind.

The President 's power of appointment is, however, restricted by the participation of the Senate; and to comprehend the significance of the President's authority it is necessary to examine the influence exercised by the Senate. Some of the opponents of the constitution feared that the President, through his power of nomination, Avould have full control over appointments ; and that an ambitious man, supported by his own appointees in office, might retain possession of the Presidency after the expiration of his term.^ The friends of the constitution argued that the power of the Senate would act as a restraint on the President ; but at the same time they believed that the power of nomination would place the primary responsibility on the President, and that this would tend to secure good appointments.

In the early days of the national government an attempt was made to limit the President 's power over nominations. It was urged that the right of the Senate to advise appointments could only be accomplished by suggesting names to the President, from which he might make nominations, to which the Senate would have to consent before the definitive appointment could be made. This method, by giving the Senate the right of initiative and the power of ratification, would virtually have made the Senate the sole appointing power. This interpretation was so clearly contrary to the intent of the consti- 'EUiott's Debates, I, 379.

tution that it was never accepted, and the Senate collectively acts on appointments only after nominations have been submitted.

But, while the Senate as a body does not control nominations, the individual Senators have come to wield a large influence in this field, and in some cases almost dictate nominations for local positions. This influence of the individual Senators has developed through the custom of * ' senatorial courtesy, ' ' whereby the Senate will refuse to consent to a nomination which is opposed by a Senator from the state concerned, who belongs to the same party as the President, and this opposition is almost certain to develop if the recommendation of the Senator has not been accepted by the President. Thus, for local positions, it is often the case that the primary selection is made by the Senators, or for less important positions by members of the House of Kepresentatives, and the President merely exercises a power to reject unfit persons. To a large extent some such procedure is an almost necessary result of the great number of positions now filled by presidential nomination. It is impossible for the President to have personal knowledge of the applicants for local offices ; and since he must rely on some one ? else for advice, it is natural that he should give weight to the reconunendations of the Senators and Representatives.^

For some positions, however, the President exercises a much larger personal control. The heads of the Executive departments, who form the Cabinet, are in most eases personal selections ; and the Senate confirms nominations for these offices as a matter of course. And in making nominations for the more important offices, particularly in the diplomatic service, the President exercises a large degree of independent judgment. Probably the President makes personal selections for as many positions as it is possible for one man to make with due consideration.

At the same time it must be recognized that the custom of allowing the members of Congress to select local officers, gives

* Harrison, This Country of Ours, 109.

them a control over the administration not contemplated by the constitution, and far from satisfactory in practice ; while the President's exclusive power over the formal nominations tends to induce the members of Congress to support legislative measures favored by the administration, in return for patronage favors. There is probably no specific agreement to trade votes for appointments ; but the influence of existing customs certainly violates the spirit of the constitutional separation of powers.

To correct this misuse of the presidential appointing power is not an easy matter, which can be fully accomplished by promulgating a legal rule, either in the form of a statute or of an executive regulation. The positions affected are of a distinctly different character from those in the subordinate classified service now filled by means of competitive written examinations ; and call for qualifications of business capacity which cannot be thoroughly tested by that method. A system of higher grade examinations based on a professional university course in law, economics and public administration, such as is followed in Germany, could undoubtedly be devised, and could be so adapted to American educational methods as to avoid any possible danger of the bureaucratic spirit. But even such a system could be perverted to partisan purposes so long as present notions as to the political nature of presidential appointments prevail. The fundamental change that must be made is the recognition and appreciation, both by the people at large and by the politicians, of the non-political character of the administrative offices.

Two suggestions may be made which, if adopted, would aid in emphasizing this non-political character of such offices and in reducing the scope of political patronage. If the four-year tenure law were replaced by the older system of appointment for indefinite terms, the patronage at the free disposal of any administration would be reduced to a fraction of what it now is. And if the appointment of local officers could be transferred from the President and Senate (both essentially political organs) to the heads of the departments, who are more directly responsible for the efficient conduct of their respective departments, administrative qualifications would receive larger consideration than is now given them. Such a decentralization of the appointing power would not take from the President any control which he personally exercises ; but would be simply a recognition that the number of appointments is far larger than the President can select in person, and would transfer the responsible power of appointment to an administrative officer, who would be less dependent on the advice of members of Congress. Not only would this action tend to better the character of the administrative service ; but the reduction of congressional patronage would tend to eliminate a serious corrupting influence from the congressional elections.

It may be added that still further decentralization in appointments may become advisable in the future as a counterbalance to the growing centralization in legislation and the scope of the national administrative service. Certainly if the constitution should be amended to give Congress larger powers, there should at the same time be amendments providing for some decentralization of the national administration. This might be accomplished by giving the state governors the power of appointing local agents of the national government, a method that would secure the advantage of local knowledge and at the same time continue the method of appointments by an executive official.

None of these proposals is intended to suggest any limitation on the President's power of removal. That power, as will presently be seen, is what gives him the effective control over the whole administration which he should continue to hold. Moreover by separating the power of removal from the power of appointment for local offices, and reserving the removal power to the President, a further remedy is provided against the abuse of the appointing power for partisan or personal purposes.

Power of Removal. — The constitution provides for removal

THE PKESIDENT— I 9

from oflfice by the process of impeachment and contains r.o other mention of the power of removal. Under the strictest construction of the constitution, it might be urged that there is, therefore, no other method than impeachment by which administrative officers could be removed.^ But from the time the question was raised, it seems to have been admitted that there is a larger power of removing officers whose terms were not explicitly prescribed by the constitution. By whom such removals might be made was a question answered in different ways. There are three possible alternatives: it might be a power vesting in the President alone; it might vest in the President with the advice and consent of the Senate ; Congress might have the right to designate who should exercise the power.

In the first Congress the matter was thoroughly discussed. The bill for establishing a department of foreign affairs provided that the head of the department should ''be removable from office by the President of the United States." Discussion at first arose in the House of Representatives on the question whether the President alone or the President and the Senate had this power under the constitution. Hamilton in one of the Federalist papers had stated that the consent of the Senate would be necessary to displace as well as to appoint. It was now urged that removal from office was part of the appointing power, that the Senate had by constitutional authority the same share in removals as it had in appointments, and that it was unconstitutional to attempt to confer the power on the President. There was also some opposition to the clause on the ground that a President might abuse the power for partisan and political ends. In opposition to this view, it was contended that the appointment and removal of officers are essentially executive acts ; and that while the President 's power over appointments was specifically limited bj^ the constitution, there was no limitation on his power to remove. Madison sup-

^ This would not restrict the power of removing subordinate agents and employees below the rank of "oflScers. "

ported the President's power of removal; and replied to the charge that he might abuse the power, that wanton removal of meritorious officers would subject him to impeachment and removal from his own position. The motion to strike out the clause, which had been supported by those who favored Senate participation, was defeated by a vote of thirty-four to twenty.

It was next pointed out, however, that the clause did not rest the President 's authority on the constitution, but attempted to confer the power on him by legislative enactment ; and it was urged that it was both useless and improper for the Congress to grant a power already conferred by the constitution. Accordingly, the original clause was withdrawn : and in another part of the bill a provision was inserted for filling vacancies, "whenever the said principal officers shall be removed from office by the President of the United States, or in any other case of vacancy." This was understood and accepted as a positive declaration that the right of removal was conferred on the President by the constitution.

In the Senate there was strong opposition to the provision in the House bill, but eventually it was adopted by the casting vote of the Vice-President. And during the samo session of Congress, bills organizing the Treasury department and the War department, containing precisely the same provisions, were passed by both houses.

This action took place in 1789. For 78 years the interpretation of the constitution then accepted was followed without question. Then during the quarrel between Congress and President Johnson an act was passed for the express purpose of preventing removals by the latter. This Tenure of Office Act of 1867 distinctly repudiated the construction formerly given to the constitution, but does not clearly assert whether the power of removal resides in the President and Senate under the constitution or that Congress has control over the subject. It declared that removals to be valid must be consented to by the Senate, that during the recess of the Senate the President could do no more than conditionally suspend an

THE PEESIDENT— I H

officer, and that only for good cause ; and that he must report all suspensions for the approval of the Senate within twenty days after the beginning of a new session.

Two years later, when President Johnson was succeeded by President Grant, the law of 1867 relating to removals and suspensions was amended by additional legislation. In the new statute, the President was permitted to suspend officers **in his discretion," instead of only on certain specified grounds. Where the former law had provided that a suspended officer should resume his office if the Senate refused to concur in the suspension, the statute of 1869 simply provided that if the Senate refused to confirm an appointment in place of a suspended officer, the President should nominate ianother person for the office.^ This latter arrangement would seem to make the President's power of suspension equivalent to the power of removal, although the use of the word suspension is somewhat equivocal. Evidently President Grant was not entirely satisfied; for in his first annual message to Congress he complained of the law of 1869. But as the President and Senate were now in political accord no difficulties arose; and the statute was allowed to remain. Nor did any trouble arise until on the inauguration of President Cleveland in 1885, the President and the majority of the Senate were again politically opposed.

During the session of Congress in the winter of 1885-6, the Senate delayed action for several months on a large number of nominations made by President Cleveland to fill vacancies caused by suspensions during the preceding recess. During this period the Senate endeavored to obtain from the executive departments information as to the causes of the suspensions, and this information the executive departments, under direction of the President, declined to furnish. The President claimed that suspension was a purely executive act with which

^ The attorney-general held that if the Senate adjourned before confirming a nomination in cases of suspension, the suspended officer became reinstated, but could be again suspended. 15 Opinions Atty.-Gen. 376.

the Senate had no concern. The Senate asserted in a Resolution that it was * ' the duty of the Senate to refuse its advice and consent to proposed removals of officers" when the documents and papers in reference to supposed official misconduct were withheld by the Executive. The President maintained his position ; and eventually the Senate confirmed the nominations to fill the vacancies.*

At the next session of Congress, an Act was passed repealing the Act of 1869 amending the Tenure of Office Act of 1867. This Act of 1887 repealed the provision requiring the submission of suspensions to the Senate, and thus restored the original interpretation of the President's unlimited power of removal. According to the earlier and present construction, the Tenure of Office Acts of 1867 and 1869 were unconstitutional, since they were based on the theory that Congress had the power to determine how removals should be made.

It is true that soon after the passage of the Act of 1867, a circuit judge considered it constitutional, on the ground that Congress had full control over the question, and under the earlier system had practically conceded the right of removal to the President.^ But in the face of subsequent events, it may be doubted whether this dictum is the final judicial opinion on the question.

Certainly in recent cases the Supreme Court has recognized an unlimited presidential power of removal in the face of statutory provisions similar to those which the state courts consider as limitations on the removal power of state governors. In one case it has been held that the President's power of removal applies to officers appointed for a definite term, before that term has expired.^ And in another case it has been held

^Atlantic Monthly, Vol. 86, p. 1; Grover Cleveland, Presidential Problems.

==U. S. V. Avery, Deady's Eeports, 204; 24 Federal Cases, 902. The constitutionality of the Act of 1867 was not involved in the case before the court.

that the President 's power is not restricted by an Act of Congress defining certain causes for removal.

This latter case arose out of an Act of 1890 establishing the board of customs appraisers, which provided that the appraisers were to be appointed for no definite term, but could be removed by the President for ' ' inefficiency, neglect of duty or malfeasance in office". This board of appraisers has been called a customs administrative court ; and it seems to have been the intention to give its members a tenure approaching in permanence that of the national judiciary. In the states, a provision authorizing removals for certain causes, is regularly held by the state courts to require a statement of charges and an investigation by the removing authority. "When, therefore, an appraiser named Shurtleff was removed from his position \vithout notice of any charges or cause for his removal, he brought the question as to the legality of his removal before the judiciary. But the Supreme Court decided that the provisions of the Act did not restrict the President's power of removal to the causes specified ; but in addition, the President had the power of removal at will, and that no notice or hearing was necessary.^

One important class of national officers— the judges— are excepted from the President's power of removal by the constitution. The provision that United States judges shall hold office during good behavior makes them irremovable except by the process of impeachment. But over all officers in the executive branch of the government, the President's power of removal is beyond question.

The extent to which the Presidents have exercised the power of removal is one of the most marked characteristics of American administration. Advocated as a necessary means to enable the President efficiently to discharge his duty to see that the laws are faithfully executed ; the power has been used to make changes on a large scale at the beginning of every presidential term, and in connection with the four-year tenure ^Shurtleff v. U. S., 189 U. S., 311.

for many positions it operates to secure an almost complete change in the administrative personnel, whenever there has been a political change in the executive. While Madison held that removal of a meritorious officer would be a just cause for impeaching the President, removals for the sole purpose of creating a vacancy for a political supporter have come to be a frequent occurrence. It must be noted, however, that the custom of removals for political reasons, is a logical result of the system of political appointments.