$25,000.1 The bill was an avowed attempt at reform, a return to the former simplicity of the government,—and was brought forward, largely for party purposes, not long before a national election. The President vetoed the bill 2 because the salary as fixed by the measure was insufficient to support the office of chief executive of a great nation with becoming dignity. He argued that $25,000 was enough at the beginning of the government, when the nation numbered only three millions of people and when the country had not yet recovered from a long and exhausting war; but since that time the size and dignity of the country and the needs of the office had greatly increased, and now $50,000 was not too much. The good sense of the country has approved the President's position, and no serious attempt has since been made to reduce the President's salary. § 34. Use of the veto in Controversies on questions arising out of the Civil War.3. In the discussion of the veto as a protection to the executive, one class of vetoes remains for special consideration, namely, the vetoes of measures which grew out of the Civil War. Some of these vetoes have already been considered under other heads. Here it becomes necessary to determine what bearing the questions raised had on the mutual relations of the executive and legislative branches of the government. The reconstruction vetoes claim our attention first. President Johnson had a definite plan with regard to reconstruction. Не desired to have the Rebel States readmitted into the Union at once, and on their former footing.5 Congress objected for two 1 The increase was made in 1873 by a rider tacked to the legislative appropriation bill. The rider also increased the salaries of Congressmen, and was known as the "Salary Grab." 2 Appendix A, No. 99. 3 Two vetoes which are connected with the later reconstruction policy of the government should be mentioned at this point. They both apply to the United States laws covering Southern elections, and occurred in President Hayes's administration. The first veto was of a bill to prohibit military interference at elections (Appendix A, No. 121). President Hayes objected to it because it would prevent the exercise of force necessary, at times to support the Constitution and laws of the United States (see § 35). The other vetoed bill was entitled "an act regulating the pay and appointment of deputy marshals” (Appendix A, No. 127). Under the guise of regulating the appointment of these officers the act took from them the power by which they were enabled to preserve order and prevent fraud at elections. For this reason the President refused to sign the bill (see § 35). 4 The bills discussed here can be found in Appendix A, numbered as follows: 53, 54, 57, 59, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72. The important measures are elsewhere considered according to subject matter. 5 Conkling, Executive Powers, 76; McPherson, Reconstruction, 45-100 passim; Callender, Stevens, 111-112, 123; Wilson, Slave Power, III, 590-602, 614. reasons in the first place, it had a plan of its own which it very much preferred; and in the second place, rather as a corollary to the first reason, Congress disapproved of the manner in which the President attempted to carry out his scheme. Congress claimed that the President acted in an unconstitutional manner, and the President abusively charged Congress with proceeding in an unconstitutional manner. Congress passed act after act in furtherance of its plan, acts which were regularly vetoed, and almost as regularly passed over the veto. The President called hard names, and strove to carry out his plan by means of proclamations and executive orders to the Army, the effect of which Congress counteracted. No ordinary rules of judgment can be applied to these discussions, since the circumstances were abnormal and wholly unforeseen by the founders of the government; measures were needed for which neither constitutional provisions nor precedent could be cited. The plan proposed by President Johnson seems more in accord with the principles of the Constitution, although less practical, than the Congressional plan. In so far as the veto was used in this contest, it cannot be said to have been used to defend the President from unconstitutional attack, save in the case of the Tenure of Office Act.1 Incidentally he was deprived of his command over the army 2 and his power of appointment. But in the contest over the main question, that of reconstruction, none of the President's rights under the Constitution were touched. § 35. Riders on appropriation bills. At one other period in our history questions arising out of the Rebellion have called for the use of the veto to protect executive power. In this case the veto was used for its own protection; that is, for the protection of the President's right to refuse to sign a bill. 3 The law of 1865 provided that troops might be used at the polls on election days to repel armed enemies of the United States, and to keep the peace. The election law of 1870, as amended February 28, 1871, provided for the appointment of two supervisors of elections in each election district or voting precinct. These supervisors were to be appointed by the Federal circuit judges and were personally to count each ballot.4 1 Ante, § 28. 3 Rev. Stats., §§ 2002, 5528. 2 Ante, § 30. 4 16 Stats. at Large, 434. The Democrats disliked this legislation, and opposed it unsuccessfully in Congress. In time they got control of that body and at once set about the repeal of the obnoxious laws. President Hayes was opposed to the undertaking, and Congress therefore attempted to accomplish its purpose by means of riders.1 A rider was attached to the Army appropriation bill of 1878, taking away from the government the right to employ the Army as a posse comitatus.2 The President signed this bill, and emboldened by success, Congress redoubled its efforts. Within a short time five appropriation bills were furnished with riders, whose object was the repeal of the objectionable election laws. But they did not meet with the success which attended the first one. In short, they were all vetoed. The President vetoed the measures on the ground that the Constitution had granted the executive the privilege of refusing his sanction to Congressional proposals, and that he would not allow Congress to brow-beat him out of his privilege. It was a bold step to take, for riders had been very numerous in the years since the war, and had come to be considered almost as a matter of course.1 The President's position was, however, constitutionally sound. He was brave enough to stand by his convictions, and the fact that his opponents did not have a two-thirds majority in Congress gave 1 The practice of attaching riders to appropriation bills and other important measures began in 1820, when the bill for the admission of Missouri was "tacked" to the bill for the admission of Maine. In 1849 the Senate tacked to an appropriation bill a clause extending the Constitution and Revenue laws to the newly-acquired Mexican territory. This attempt at coercion failed. In 1856 the House tacked a provision to an Army appropriation bill, forbidding the use of Federal troops for the enforcement of territorial law in Kansas. The Senate refused to be coerced, and Congress adjourned without passing any Army appropriation. An extra session was called, in which the House yielded and passed an Army appropriation bill without the rider. These early riders were attempts by one house of Congress to coerce the other. In President Johnson's administration riders were first prominently used to coerce the President. They have been exceedingly numerous in the last twenty-five years. The most important were: the rider depriving President Johnson of the war power; Senator Kellogg's rider providing for Federal supervisors of elections (1872); "the salary grab" (1873); and the riders in Hayes' administration. Horace Davis, American Constitutions (in Johns Hopkins University Studies, Third Series). 2 20 Stats. at Large, 152. 3 The bills will be found in Appendix A, numbered: 120, 122, 123, 125, 126. 4 It is said that 387 riders were attached to appropriation bills between 1862 and 1875.- Davis, American Constitutions, 30. him complete victory. The rules of the House of Representatives in 1888-89 forbade the "tacking" of any measure of general legislation to an appropriation bill unless it was germane to the subject of the bill. § 36. General effect of the vetoes for the protection of the Executive. The veto power, as the present chapter shows, has been used many times, and often successfully, as a defence to the executive. The power of the executive in foreign affairs, the power of appointment, his power over the Army, and lastly his power to veto bills, have all been asserted and maintained against legislative encroachment. In other instances, however, the veto has not proved the complete protection to the President which the Constitutional` Convention anticipated. Mr. Horace Davis, in his "American Constitutions," 1 points out three ways in which Congress has encroached on the executive. In the first place, Congress has invaded the treaty-making power, and, in the face of the Constitution, abrogated treaty provisions by statute.2 This was conspicuously the case in 1798, when our treaty relations with France were thus abrogated. Again, the House of Representatives claims the right to pass upon all treaties touching the revenue, by refusing the appropriations necessary to carry them into effect, on the ground that the House alone has the right to originate money bills. This claim was acknowledged in the Hawaiian Reciprocity treaty, in which there was a provision that the treaty should not become binding until the passage of an act of Congress to carry it into effect. Both of these claims Mr. Davis considers as invasions of the President's treaty-making power, which might have been resisted, perhaps successfully, by the veto. They were, however, not resisted, and are probably both too strong now to be overthrown. In the second place, Congress both directly and indirectly has invaded the President's power of appointment to and removal from office. As we have already seen, the Tenure of Office Act deprived the President of power in making removals which the uniform interpretation of the Constitution has accorded him. But Con 1 Johns Hopkins University Studies, Third Series 2 In support of this claim by Congress, see Taylor v. Morton, 2 Curtis, 454. 3 Davis, American Constitutions, 28. 4 19 Stats. at Large, 627. gress, although powerful enough to seize this power in spite of the veto, has since relinquished it voluntarily.1 The President by the relinquishment obtained merely the shadow of power, for he had already lost the substance through the "courtesy of the Senate." As far back as President Jackson's administration party leaders began to claim the right to control the President's power of nomination by suggesting suitable candidates. This claim became stronger, and by President Johnson's time it was looked upon as an undoubted right, so that nominations were practically made, not by the President, but by the Senators, and even by members of the House of Representatives. It is clear that an invasion of the President's power in regard to nominations to office cannot be reached by the veto. It must be met, if at all, by the sturdy refusal of the President to submit to dictation in the matter. It has been met in that way. President Hayes refused to listen to Senatorial dictation;2 President Garfield's contest with the New York Senators over the " courtesy of the Senate" is famous, and President Harrison is at the present time showing a commendable independence in making appointments not approved by Senators of the states in which they are made. Congress has encroached upon the executive in one other way, namely, in forcing him to sign bills of which he did not approve, by tacking them as riders to appropriation bills. This assumption of executive power, and President Hayes's successful resistance of it, we have just considered. Practically, then, Congress has succeeded in partially usurping only one of the President's powers, that of making treaties; and even in this case the veto might have been successfully used. The record forcibly demonstrates the wisdom and foresight of the founders of the Constitution, in their expectation that the veto would be an efficient instrument in maintaining the balance of power between the executive and legislative departments. 1 The act was finally repealed March 3, 1887. See 24 Stats. at Large, 500. |