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an informal committee of the Privy Council, one of the oldest features of the British constitution, and is, moreover, the working part of the Privy Council; while in this country the Cabinet is purely a voluntary association of the heads of the departments.
Not only has the President's Cabinet no legal existence, it has no collective responsibility, and no control over the political and legislative work of Congress. In most European countries the members of the cabinet are the leaders of the majority in the legislature; and are the responsible directors of legislation. In the United States, the members of the Cabinet cannot be members of Congress; and by custom are excluded from speaking in either house, although they frequently appear before congressional committees. It has been proposed to give them seats and the privilege of speaking in Congress without a vote; and this action would doubtless increase their influence in legislation, but so long as they are chosen by the President without reference to the party majority in Congress they could not become the controlling factors.
Even in administrative affairs, the Cabinet as a collective body has no legal control over the President or of any single member. If votes, resolutions or formal recommendations were passed, they would not legally bind the President in the slightest degree. It is a purely advisory body voluntarily consulted by the President; but the latter must himself make the final decision and assume full responsibility for all decisions.
While it is necessary to recognize the less important position of the President's Cabinet as compared with the cabinets in such countries as England, France and Prussia, there is also some danger of underestimating its functions and influence. Thus Mr. Bryce says: "The ministers meet in council, but have comparatively little to settle when they meet; they are a group of heads of departments, whose chief, though he usually consults them separately, often finds it useful to bring together in one room for a
talk about politics or to settle some administrative question which lies on the borderland between the provinces of two ministers."
If this statement fully represented the work of the Cabinet, it would be difficult to understand the necessity for two regular meetings of the Cabinet every week during the greater part of the year. Not merely matters involving more than one department, but most matters of first importance in the field of any department or of presidential action, are considered and discussed; and even in the field of legislation measures that are to be officially recommended or privately urged either by the President or the secretaries are carefully gone over and an administration policy is usually worked out and adopted. In administrative matters, the Cabinet consultations serve not only to avoid conflicting action by the different departments, but also to bring about in large measure a harmonious spirit of co-operation; and in both respects the national administration is much more effective than the disorganized executive machinery in most of the states. In legislative matters, the influence of the Cabinet consultations necessarily depends on the party relations between the President and Congress. When one or both houses of Congress is politically opposed to the President, comparatively little can be accomplished; but when the President's party has a majority in both houses, the administration policy will, unless there are internal party dissensions, have large weight in the legislation enacted.
Each head of a department even in his own field is subject to the control and direction of the President. But from the causes which lead to the establishment of the departments this control cannot cover his whole field of action. The departments are created because there is more work to be done than can be effectively supervised by the President himself; and thus each secretary has a series of administrative powers and duties which they perform largely independent of the President. The constitution provided that Congress may grant to the heads of the departments the power to appoint in
ferior officials; and many laws have conferred this power, SO that the greater mass of offices are filled by the appointment of the heads of the departments. The more important subordinates are, however, appointed by the President and Senate. Under the civil service law of 1833, a great number of minor appointments are restricted to candidates who have qualified themselves by examinations.
It was early laid down by the courts that the power of removal was incident to the power of appointment. So whenever the heads of the departments have the appointing power, they have (unless there are express provisions in statute or executive regulation to the contrary) the power of removal also.
Under the earlier conception of a head of a department in England and the United States, he was considered an official at the center of government with powers of appointment and removal, but he was not supposed to direct the actions of the subordinates in his department. The statutes of the legislature entered into the most minute details as to the duties and powers of the subordinate officers, so that the need for central instruction and supervision was not felt. This situation can be illustrated in the national administration by the collectors of customs. Though appointed nominally as subordinates of the Secretary of the Treasury, the law did not recognize that they were subject to his instructions and directions. It was not the practice to regulate their duties by administrative instructions, nor was there any custom of appealing from the decision of a collector to the Secretary of the Treasury. But as the result of a century of development the national administration has become centralized in spirit and practice as well as in form. It is now recognized that the department secretaries stand at the head of a hierarchy of officials, with power to reverse or modify on appeal the decisions of inferior officers and to direct them how to act. In particular, the statutes now specifically provide for an appeal from a collector of internal revenue to the Treasury before the aggrieved party has any standing in court; and
in the department of the Interior there is a well-developed system of appeals from subordinate officials to the secretary. The courts, too, have recognized that the head of a department may change the decision of a subordinate officer.
Still further the heads of departments exercise a delegated ordinance power; and most of the executive regulations are in fact issued by the department concerned. The revised statutes authorize the head of each department "to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use and preservation of the records, papers and property appertaining to it." Besides this grant to all the heads of departments, special ordinance powers are given to the heads of the particular departments.
This ordinance power is, however, limited to that specifically conferred; and where a regulation is issued not clearly based on legal authority, the courts do not hesitate to declare it void when its legality is contested in suits before them. But when Congress has delegated the power to issue such regulations, these when issued have the full force of a statute, upon private individuals as well as upon public officials.
44. CABINET AND CONGRESS IN THE ADMINISTRATION OF WASHINGTON.
Although in theory the legislative and executive branches of our government are separate, in practice it has been found impossible to avoid some form of coöperation between them. This has been the more inevitable because the executive departments were not provided for in the fundamental law but have been established by Congress, which may, therefore, to a certain degree control their activities. The question as to this relationship arose at the very beginning of our government and the practice then established is the subject of the following article by Mary L. Hinsdale :
However conclusive the proof that Congress did not admit the heads of departments to its debates during the formative period of the government, it cannot be denied that it coun
tenanced the principle involved, by passing the act to establish the Treasury Department, September 2, 1789. As is well known, this act includes a provision that the Secretary of the Treasury "shall make report and give information to either branch of the Legislature, in writing or in person, as may be required." There is no reason to suppose that the members of the First Congress saw in this any violation of that clause of the Constitution which enjoins that "no person holding any office under the United States shall be a member of either House during his continuance in office." It is true that the new Executive was regarded with suspicion, so much so that James Madison, the leader of the House of Representatives, referring to the opposition which the attempt to secure the power of removal to the President alone was encountering, expressed the fear that the Executive would be the weak branch of the government. Moreover, the general impression of direct intercourse between the Executive and the Legislature was that it would be abused by the former power. Nevertheless, so far as the writer of this paper has been able to discover, the provision that the head of the Treasury Department might report in person, if so ordered, was not attacked in debate. Whether it was that attention was diverted from it by the onslaught against the provision that the Secretary of the Treasury should digest and report plans for the improvement of the revenue, and for the support of the public credit, wherein the constitutional right of the Lower House to orginate money bills was supposed to be threatened, or whether the Executive interest was strengthened for a new victory by the triumph it had lately scored, under Madison's leadership, on the subject of removals, the principle of direct intercourse had an easy triumph. On the day when this section of the bill was voted upon, June 25, Fisher Ames wrote to one of his political friends: "A puerile debate arose, whether the Secretary of the Treasury should be allowed to exhibit his reports and statements to the Legislature. The champions of liberty drew their swords, talked blank verse about Treasury influence, a min