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to be expected with certainty that they would take directly opposite grounds. The doctrine that both houses should be regarded as one composite body, and that the majority of all of the votes should decide, found not the slightest support in the constitution. Against the claim that congress was capable of deciding, the very important objection was raised, that the constitution provides only that the certificates shall be opened and counted “in the presence of the senate and house of representatives.” All the other provisions indicate, however, an intention to assign to the states the right and responsibility of taking care that their electors shall be appointed in a constitutional and lawful manner, and their legal votes be properly conveyed to the president of the senate. The assertion of the republicans, that the decision belonged to this official, was equally untenable. Nowhere does the constitution empower him to count the votes. It declares simply that they “shall be counted,” — a formula which forces us to suppose that, according to the views of the framers of the constitution, the question was one simply of addition. The claim of the democrats that the decisive vote must be accorded to the house of representatives, because eventually the election of the president was incumbent upon it, was not a bit better founded. It was evident that no amicable adjustment would be attained, if the decision of the question were delayed until the official counting of the electoral votes. In harmony with public opinion, the most thoughtful leaders of both parties wished, however, to avoid the great commotions which would have been inevitable if the question were not decided before the beginning of the new presidential period. Refuge was therefore taken in an expedient which certainly cannot be called unconstitutional, but must be described as extra-constitutional. It could scarcely be resorted to again. A law was enacted, the essential provisions of which were as follows: If a state had sent in only one return of the electoral votes, it should not be rejected unless both houses should so decide; if two returns were sent in, these, together with all documents relating to them, should be referred to a commission of fifteen members; each house named five members of this commission; the law made four designated justices of the supreme court members, and these four were to select another justice of the supreme court as the fifteenth member; the decision of this commission was to be final, unless set aside by a concurrent resolution of both houses; an appeal to the courts was not forbidden. The republican candidate, Hayes, was installed in office under this law. The democrats accommodated themselves to circumstances, but adhered to the view that Tilden was the legally elected president. The manifold efforts to render the recurrence of such an event impossible, by amending the constitution or enacting proper laws, have not thus far as yet led to the desired result.
$ 26. THE “CABINET.” The constitution knows nothing of a “cabinet.” Even if the word has become as thoroughly naturalized in the language of America as in European states, it is nevertheless, from a constitutional standpoint, an abuse. The constitution speaks only of “executive departments.” It does not call the heads of them ministers. It generally gives them no titles. By statute, the name “secretary” is given them. Collectively, the secretaries have no constitutional existence whatever. One of the two clauses of the constitution in which they are mentioned shows, however, that the framers intended to give the president, in the secretaries, not only executive organs of his will, but also counselors upon whose official counsel he might rest his acts and deeds — not legally, but morally and politically — when they were questioned by congress or the people. The president is authorized to “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.” Art. II., sec. 2, § 1. The express grant of such a power in the fundamental law of the state means something only when thus interpreted. It is, therefore, certainly not in opposition to the spirit of the constitution if the secretaries have been more and more fused into a ministry which, as a whole, advises the president, so that his personal policy expands into the policy of the administration. But even if this is regarded not simply as permissible, but also as self-evident and necessary, still the president can never shield himself by an appeal to a resolution of his so-called cabinet. It is not opposed to the spirit of the constitution, and it is an irrepressible demand of modern government that, while the president resolves upon many things in his cabinet, he alone — not the cabinet — concludes, i. e., decides. The political responsibility of each secretary extends beyond the limits of his own department, because he has voluntarily incurred a moral responsibility for the general character of the president's policy by sitting as a member of the cabinet. But, as the president possesses the sole right of decision, he cannot throw upon his cabinet his legal or political responsibility. As he can seek support in the opinion of each secretary about that officials own department, so he can seek it, by getting the opinion of all the secretaries together, about his general policy; but he cannot put his cabinet in the place which the constitution reserves for him. Because his position in relation to the cabinet is completely free, while as to the single minister it is limited by law, it is so much the more his duty to maintain with zealous care the constitutional relation — one which utterly excludes, according to its fundamental idea, a cabinet in the sense of those of the constitutional states of Europe. The constitution presupposes the existence of different “executive departments.” These were, however, first created by law, and by law the duties and rights of all the secretaries have been accurately defined. The president decides for himself what he shall propose to his cabinet, how he shall count and weigh its votes, and to what degree he shall permit its counsels to influence his own decision. The secretaries are not (as executive officers) unconditionally subject to the will of the president. They are actual heads of departments, and that not because it has so pleased the president, or by force of circumstances, but because the law has made them such. The cabinet is, so to speak, only an inner chamber of the administration. Circumstances and the character of the president may permit it to attain great practical importance, but an official action of any kind whatever by the cabinet, as a body, seems impossible, as long as the whole political structure of the executive power is not subjected to a change in its principles such as could be effected only by a constitutional amendment. The fundamental character of the present relation between the president and congress is that they stand side by side. A cabinet, in the European sense of the term, would be justified, and its existence rendered possible, only when, in place of this relation, a far more intimate and organic union of the executive and legislature had been brought about. The introduction of a parliamentary government must not be thought of. That would put the entire constitution upon perfectly new bases. The administration could not be conducted in the name of a president and under the name of a cabinet by a committee of the law-making power. As before stated, the executive must be an independent and co-ordinate factor of government, and the bearer of this executive power must be president, not merely in form but in fact. The constitution grants the senate a right of control over the appointment of the secretaries, inasmuch as it requires the senate's confirmation of the president's nominations. But it would be a grievous sin against the spirit of the constitution if the senate were to misuse this right of confirmation so as to compel the president to appoint a particular person, or even a man in political accord with the majority of the senate. The provisions of the constitution as to the time of election, the method thereof, and the terms of office, of president, senators and representatives, leave no doubt that the framers of the constitution did not consider political harmony between the president and congress, or between the president and one of the two houses, as a matter of necessity. As the president is responsible for the administration, it is self-evident that, so far as political views do and must come into consideration in choosing the cabinet, those of the president must prevail. In theoretical discussions, as well as in political struggles between the executive and the legislative powers, the view has always obtained that the constitution gave the president full liberty to remove the secretaries. The political school
1 The conflict between Andrew Johnson and congress led to the enactment of the tenure-of-office act of March 2, 1867, which related to all the civil officials appointed by the president with the consent of the senate. But its main object was to compel the president to retain in office the secretaries who, in full accord with the majority of congress, were the bitterest opponents of his policy towards the rebel states. In my opinion, party passion alone dare dispute that congress, by the passage of this law, became guilty of the boldest usurpation and of gross violation of the true intent of the constitution. Barely