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article pointing to an evil in the present system, an official investigation lasting about three days, a report, and finally a telegram of instructions from Washington to San Francisco, New York or Philadelphia. A change in the laws themselves, on the contrary, requires the formation of a strong public sentiment, a session, two sessions or several years spent in compromises, amendments and discussion, and finally the passage of the bill in an amended or weakened form. Administrative action by its very quickness carries with it something of the arbitrary; certainly it is capable of serious abuse if not exercised with care, but in the main it satisfies the demands of the time and is growing rapidly in popular favor. This fact strikes us most forcibly in the national government because the centralization of power there is more impressive, but the principle holds equally true of our cities. With the construction of every trolley-line and the elevation of every telephone or telegraph wire, the possibility of and the popular demand for the swifter exercise of municipal authority is increased. Even in our commonwealths, the number of problems which cannot await the more leisurely treatment of the legislative assembly, but must be solved from day to day, is becoming so large as to occasion a shifting of power to the administrative officials. In leaving the discussion of this point it should be noted that a larger amount of human energy and attention is constantly being devoted to time-saving devices of all kinds. The demand for speed feeds upon itself and the influence of this demand upon the relative positions of the legislative and executive departments may apparently be even stronger in the future than at present.
IV. At first glance it might seem that the greater size of our legislatures is a national compensation for the increase in the public business; with more work to do we have more legislators to do it and the possibility of a greater division of labor. But large numbers in a legislative assembly means slower procedure and greater difficulty in transacting business. With each addition to our City Councils, State Legis
latures and National Congress, the unwieldiness of these bodies becomes more apparent and the possibility of maintaining the present forms of legislation more difficult.
These four causes rather than the particular personality of the administrative chief, have called forth the system of executive supremacy. In the last analysis Congress and the President are keen competitors for the interest, the enthusiasm and the sympathetic approval of the people. In that earliest epoch of our national history when the minds of men were governed by the remembrance of former tyranny and the fear of a new despotism it was natural and inevitable that Americans should look to Congress for the protection of their liberties and the expression of their political beliefs. At that stage of the competition Congress, as the possessor of the qualities of deliberation, traditional jealousy of the executive and habitual care of the rights of the people, certainly deserved and received the first place in the confidence of the citizenship. But at present with the advent of the new conditions already outlined it would be strange indeed if the President were not awarded this preferment. The executive office stands emphatically for those qualities and characteristics which we now consider as typically American-efficient, purposeful, definite, quick action.
With this shifting of the relations between the two departments of government there arises a series of important problems which will have to be faced if executive supremacy is to be continued as a feasible and satisfactory system of government. The first of these is the adjustment of the legal relations between the two departments. At present the legislative leadership of the administrator must be exercised through devious and indirect channels. The annual message is of insignificant value in this respect. It must be supplimented by the drafting of bills in the various administrative departments and the introduction of these bills through legislators friendly to the administration. The executive officers must appear before legislative committees and use what influence they can to secure favorable action by these committees.
The chief executive must form the personal and political friendship which will advance the legislative measures for which his administration stands, and to this end he must use his various powers and prerogatives. He must strive to create within the legislative body, by all of these indirect means, a sentiment of respect for the prestige of the administration. In short, the American President has all of the work which the British Prime Minister and the Cabinet perform, but he is at present subject to all the hindrances of a system calculated on the needs of the eighteenth century. To do away with these anomalous and obstructive legal conditions is the problem of the immediate future.
In the second place, there is the need of some system of administrative courts to protect the citizen from the arbitrary action of subordinate officials. If government regulation is to be extended with each step forward in our industrial and commercial development, there will be opened up an immense field of supervision, inspection, regulation and control, bringing the public official into close contact with the citizen in a thousand different ways. To increase the points of contact without increasing the friction is a difficult and delicate task. We already need judges trained in the distinctively administrative questions of the government who can, by a speedy and inexpensive procedure, decide on points of dispute between administrator and citizen in such a way as to maintain the efficiency of the government and safeguard the rights of the individual.
42. THE POWERS OF THE PRESIDENT.
The Constitution clearly vests in the President the appointing power but says nothing as to the power of removal from office. During the first administration and again in 1867 the right of the President to exercise this control over his subordinates was questioned. The final settlement of this question and the administrative powers of the President in general are stated by Professor J. A. Fairlie as follows: 1
1 Selections 42, 43 and 47 are reprinted from Fairlie, J. A., The National Administration of the United States, by special permission of MacMillan and Company.
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 by the constitution, there was no limitation on his power to remove. Madison supported 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 same 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 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 another 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