The Powers of the President

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There was a time when under the Constitution the Republican party sought to make possible the legitimate negro vote in the South, and elaborate laws were passed, called “force laws,” to subject congressional elections to the supervision of United States election officers, and the army was used to protect them in the discharge of their duty. The Democratic party came into power with a Republican President, Mr. Hayes, and insisted upon imposing a rider upon the army appropriation bill, forbidding the use of the army to help in the enforcement of the election laws. Mr. Hayes vetoed the army appropriation bill because it contained such a rider, and the army went without money for one year. Subsequently, however, it was passed. The question never arose as to whether such a restriction upon the executive power was valid. I think it was not. It is a constitutional duty on the part of the President to execute the laws; and as long as he has an army, and the Constitution contemplates his having an army under his command, he cannot be deprived of the power to use that army to execute all the laws.

But the President’s constitutional function as commander-in-chief of the army and navy gives him a very great scope in the exercise of much wider power than merely issuing military orders to generals for the use of troops. The President was, of course, commander-in-chief in the Spanish War, and as such, under the declaration of war that Congress made, he sent troops to Cuba, and subsequently to the Philippines. After the war was over, we continued in occupation of Cuba, Porto Rico*, and the Philippines; and until Congress intervened by legislation, President McKinley carried on the military government in these three important dependencies. There were a million people in Porto Rico. There were two and one-half million people in Cuba, and there were upwards of eight millions in the Philippines; and he exercised not only executive power but legislative power over those twelve millions of people. His executive orders were law. There were some restrictions upon the character of laws he could make, where the question involved the customs laws of the United States; but all laws that had force in the dependencies themselves, he was able to make and enforce. The protocol which stopped hostilities in the Spanish War was signed in August of 1898, and the Treaty of Paris that ended the war and transferred to us Porto Rico, the Philippines, and the control of Cuba, was signed late in the same year. From that time on, the President created courts, enacted criminal and civil laws, collected taxes, and administered the government through his power as commander-in-chief of the army and the navy, and he did not need to use military agents to accomplish this purpose.

In 1900 he sent to the Philippines a Commission of five men to institute a government in the islands. It was called civil government, and it was in fact civil government, and yet it was established under his military power. At first he retained in the Philippines a military governor, and a major-general of the army was the executive, while the Commission enacted such civil legislation as was needed there and established such municipal and provincial governments as the condition of the country permitted. The President, through the Secretary of War, who acted for him, appointed in July, 1901, a civil governor in the Philippines, under his military power. That civil governor assumed office on the fourth of July, 1901, and it was not until June, 1902, nearly four years after we acquired possession of the Philippines, that Congress took a hand at all. It was a very wise arrangement, because through the ease with which the President and the Secretary of War could mould the government to suit the conditions, the character of the people, and the exigencies of the campaign to tranquillize the islands, by executive orders and Acts of the Commission, a government was created that fitted the country as a suit would be fitted to a man by a tailor. And then after it was all done, after the work was seen to be good, Congress took up the matter and confirmed what had been done, and established the present government there, on the exact lines of the government that the President had built up under his power as commander-in-chief. The same thing is more or less true of Cuba and Porto Rico; though we did not retain Cuba but turned the island over to the Cubans, in accordance with our promise made when we began the war, and although the government of Porto Rico was not fitted to the necessities of Porto Rico, by experimental administration, as fully and as successfully as in the case of the Philippines. The second intervention in Cuba in 1906 was by order of the President, without special congressional action or authority. He acted under his power to see that the laws are executed, and by virtue of his power as commander-in-chief of the army and navy.

The President has no right to declare war. That rests by the Constitution with Congress. While he cannot declare war, he can direct the action of the army and the navy, and so he could direct an invasion of a foreign country, but that would be an act of war which would necessarily bring on war. There have been cases where the President has used the marine force and landed men to protect American property, but such landing is not to be regarded as an invasion. Certainly a President would violate his duty if he directed such an invasion without the consent of the constituted authority in a foreign country and thus brought on war. But in the case of Cuba and the intervention to which I have referred, Cuba had consented in the treaty which she made with the United States, and had provided in her own constitution that the United States might intervene at its discretion for the purpose of maintaining law and order. So far as the President was concerned, this put Cuba within the jurisdiction of the United States to that extent, and so it became the President’s duty to see that the laws were executed in Cuba, without receiving special congressional authority. And he did it with the army and the navy, because he was their commander-in-chief.

Another instance. The Canal Zone on the Isthmus of Panama is a territory belonging to the United States, in which we exercise authority equal to absolute dominion. Congress passed a law authorizing the President to establish a government there, and to appoint officers to exercise governmental authority; but the law, by its own terms, expired within a year after its enactment. Meantime we were on the Isthmus building the canal. Congress had given the President authority to build the canal, indeed had made it his duty to do so, but there was absolutely no authority expressly given to him to continue a government after the expiration of the law to which I have referred. But the President went right on exercising the same authority that he had been exercising; and he did so under his constitutional authority to see that the laws of the United States are executed. In the absence of congressional action, when there is a piece of United States territory without a government, he has to take charge of it, and govern it as best he can. Congress knows the conditions and does not act, and so the President is compelled to do so. Judges may be appointed, laws administered, men imprisoned and executed for crime, and all by direction of the executive power.

Another power of the President, and one of his greatest powers, is expressed in a very innocent and simple sentence: “He shall receive all Ambassadors and public Ministers.” He can make treaties, but he cannot do that without the ratification, or, as it is called in the Constitution, without “the advice and consent of the Senate,” by a vote of two-thirds of those present. He cannot declare war, because that is a power that Congress exercises under the Constitution. Except for these specific limitations, he controls entirely our international relations. In the first place, no treaty can be made unless he initiates it. The Senate may pass a resolution suggesting his making a treaty, and so might the House, and so might Congress, but he is not obliged to follow their recommendation. All our intercourse, except the formal making of treaties with foreign countries, is carried on by the President through the State Department. Now that involves the presentation of claims and complaints by our citizens against foreign countries, and the presentation by us of petitions for all sorts of action by foreign governments. It involves a correspondence as to the complaints by foreign citizens or subjects against our government. It involves a constant reference to treaties made and their construction by our government, which construction after a while practically fixes our attitude. The President recognizes foreign governments. Thus we see in Mexico, which fell into a state of revolution and almost anarchy, President Wilson declined to recognize Huerta as provisional president. He had the right to do so. He had the right to recognize him if he chose; and the resulting crisis made it evident what a very important and responsible power that is.

Take the case of the fur seals. Congress passed a law, punishing anyone who resorted to pelagic sealing in the Bering Sea. The government owned the Pribilof Islands, upon which was a herd of seals. The destruction of the female seals out at sea was very injurious to the herd. That was the occasion for the enactment of the congressional law to which I referred. Now under the construction that international law would ordinarily put upon such a statute, it could only apply to sealing within three miles of United States land, or else in some way or other we would have to establish ownership in the seals themselves. Mr. Blaine, who was then Secretary of State, took the position that the grant of Alaska to the United States in 1867 carried with it dominion over the Bering Sea for the purpose of preserving these seals, and he went back into the records to show that Russia had claimed such dominion and attempted to prove that it had been acquiesced in by the powers. Following that view, the United States Court of Alaska sustained the seizure of certain Canadian fishing vessels that had been caught in pelagic sealing by one of our revenue cutters, forfeited them under the congressional Act and sold them. The British government, through Canadian agents, brought a suit in the Supreme Court of the United States to secure a writ of prohibition against the Alaska court to prevent that court from carrying out its decree, on the ground that there was no jurisdiction over the Bering Sea which Congress could assert or which the President could maintain. The Supreme Court dismissed the application, on the main ground that the question of the dominion of the United States was a political question, to be determined by the President or Congress; and because the President had asserted the claim through the Secretary of State that we had dominion over the Alaskan waters beyond the three-mile limit, the court would be bound by it. Then we had an international arbitration in which the court considered the question and held that the Secretary of State was wrong. For the purposes of my present discussion, it is a good illustration of the very great power that the President can exercise in his control over foreign relations.

By the Constitution, the President has the right to appoint all ambassadors, ministers, consuls, and judges of the Supreme Court, subject to confirmation by the Senate of the United States. Congress may place the appointment of all other officers, with the consent of the Senate, in the President alone, or in the heads of departments or in the courts. Practically, the general power of appointment of all officers, except very inferior and unimportant officers, is in the President, and generally confirmation is required by the Senate. This, of course, is a great power. It is a power so far as the great offices are concerned that the President must have in order that he may have his policies carried out. That is, he must appoint his Cabinet, because, as the Supreme Court has said, they are the fingers of his hand, and they must do his will and exercise his discretion. Therefore, if there is to be uniformity, if there is to be consistency, if there is to be solidarity of movement and force in the executive branches of the government, the President must appoint the men who act at the heads of departments and form his Cabinet.

In respect to all the other executive offices, however, a different rule should obtain. With the exception of the judges of the courts, of the ambassadors and ministers, of the members of his Cabinet, and the appointment of the general officers of the army, I think that the action of the President ought practically to be nothing more than a formal acquiescence in a system which prevails in other well-governed countries, by which the selection and promotion of all officers is by examination, and their tenure is for life. The President should not be bothered, as he is now, with having to exercise an arbitrary discretion enabling him, if he choose, to use the offices for political purposes, and involving him in controversies that interfere with his effectiveness as the chief executive officer of the nation and do not help the public weal. It is entirely possible to put all these offices, except the ones I have named, under the system called the classified civil service. If popular government is to be a success, the success will be measured by the ability of the government to use the services of experts in carrying it on. The selection of other than the highest officers on political grounds will not result in the use of experts to carry on the various functions that the government performs.

We are acquiescing now, all of us, in the view that the government can accomplish and ought to accomplish much more benefit for the people than Mr. Jefferson and his school of political thinkers admitted. Mr. Jefferson contended that the least government was the best government; that the function of government should be confined, as nearly as possible, to the administration of justice through the courts, and the maintenance of law and order through the police. But we now take a different view, and hold that there are many things the government can do well and better than private contractors. For instance, we have always run the post office, and now we run the parcels post. We have built the Panama Canal; and the state governments are discharging many functions that it was formerly thought would be better performed by private agency. But such functions for their successful performance require the highest experts. If we are to change such officers every four years with the political complexion of the administration, then we lose the benefit of experience, we lose the benefit of the disinterested devotion to the public service that a life-tenure brings about, and we take away from the public service its attractiveness for the many whose service would be valuable, but who because of the uncertainty of tenure in the government service decline to accept positions of responsibility in it. I speak whereof I know when I say it injures the dignity and the usefulness of a President to be bothered about the preference to be given to candidates for post offices, for collectors of customs, collectors of internal revenue all over this country. Under the present law, the Senate is required to confirm them. That necessity gives to the Senators an opportunity to use duress, for that is what it amounts to, upon the President to establish a custom by which he shall consult their political views as to who shall be appointed to those local offices.

The office of President is one of the greatest responsibility. No one knows the burden he has to carry in the Presidency until he has laid it down and realizes the exhaustion of his mental and nervous energy which unconsciously was going on while he attempted to discharge his duties. One of the most aggravating features of his present duties is this constant attention that he has to pay to the visits of Congressmen and Senators in regard to the local patronage. He ought not to have to do with such offices at all. Thus far the Senate has not been willing to give up its power in this regard. While I was in the White House I recommended it every year. I believe it is coming. We have made great progress in this matter. We have now a civil service law that covers many of the inferior offices, but what we ought to have is a permanent machinery of the government reaching up to include the assistant secretaries in the various departments. It will make for efficiency; it will make for economy; it will make for saving of the time and energy of the President and Senators and Congressmen. It will take away opportunities for political machines; it will tend towards purity in politics and effectiveness of government; and, therefore, it will make for the weal of the people of the United States; and it can all be accomplished by an Act of Congress, and a President who will approve the Act and carry out its spirit. It is coming. The Lord is on that side, but sometimes He moves more slowly than we impatient mortals think necessary.

The other great power which the President has, in addition to being commander-in-chief of the army and navy, conducting the foreign relations of the government, making treaties and declaring war, and the power of appointment and the power to see the law executed, is in the granting of reprieves and pardons to those suffering punishment for violating laws of the United States. This is a very wide power. The President may exercise it after a crime is committed and before any trial begins; may exercise it before the man is arrested; may issue an amnesty—that is, a pardon of a number of people by a class description. The power of pardon in States has been greatly abused by some governors, but I never heard that any President had called down on himself just criticism for his use of this great and merciful instrument. In the exercise of the pardoning power, there is no certain line to guide the executive to a safe conclusion. He has to balance in his mind the considerations for which punishment is provided. The aim of punishment of a criminal is, first, to furnish an example to induce others who are about to commit similar crimes to avoid them; second, to reform the criminal, if possible, that is, to chasten him and then treat him in such a way as to bring him back into the law-abiding classes of the community. If one takes up an individual case there are always circumstances that suggest, and appeal for, mercy because it happens so frequently that the imprisonment of the criminal inflicts a heavier punishment on those who are related to him by blood or kinship, than upon himself, and the pardoning power is deeply moved to save them from undeserved suffering. But the interests of society require that such a consideration should be rejected in order that the example of punishment may be effective and persuasive. It is a most dangerous power to entrust to the executive with a big heart and a little head, or a man with a big heart and very little power over his feelings. By such governors, criminals will be let loose on society and the whole effort of those who are conducting the machinery of assistance will be paralyzed. One never knows until he has been in the Presidency the amount of pressure that is brought in one way and another to stay the prosecutions and to pardon criminals. I had two cases once before me, in which it was represented to me that both the convicts were near death, and I instituted an investigation to find out the truth through the Army Medical Corps. Examinations were made, watches were established over the sick men, and it was reported to me that they were both in the last stages of a fatal disease. One of them died soon after he was released from the penitentiary. The other is apparently in excellent health and seeking to reestablish himself in the field in which he committed a penitentiary offense. This shakes one’s faith in expert examinations. Then there are many applications in advance of prosecutions to prevent indictments and prevent trials. The influences brought are insidious, and usually the very fact of seeking such influences is an indication that the person charged is guilty.

I have referred to the duty and the power of the President to see that the laws are executed. This is stated in the Constitution, but it involves considerably more than seeing that the letter of the law is carried out. It involves the construction of the law by the President and his subordinates, because he cannot execute it until he finds out what it means, and frequently laws are very blind and the interpretation of the law covers so much that it involves the exercise of an important function. Of course, courts in litigated cases are called upon to consider laws, but there are many laws of the national government that can never be brought before courts of law—acts of appropriation, for instance, as to what the appropriation includes and how to be expended. These questions are settled by the Attorney-General, by the Comptroller of the Currency, appointees of the President, and sometimes by the President himself. Then there are a great many projects to be carried out by the government, and Congress naturally vests the control of them in the President. That is what it did in the case of the Panama Canal. The Spooner Act in 1902 directed the President to construct the canal. It required him to do it through a commission, but the commission was subject to his appointment and removal.

However, “money makes the mare go.” You cannot have a government unless you have a treasury full of funds with which to run it, and all these executive functions of the President are to be performed by agents who must be paid in order that they shall serve. In other words, while these powers that I have pointed out are very broad, Congress retains very great restraining power in that clause of the Constitution which provides that no money shall be paid out of the Treasury except upon appropriation of Congress; and if the President is left without money, he is well-nigh helpless. By refusal to vote supply bills, the Commons of England brought the Stuarts and kings before them to a realization of the power of the people, and this same power still exists in our Congress to restrain any executive who may seek to exceed his constitutional limitations.

Of course, I am speaking now of the legal powers of the President. I am not speaking of those powers that naturally come to him through our political system, and because he is the head of the party. He can thus actually exercise very considerable influence, sometimes a controlling influence, in the securing of legislation by his personal intervention with the members of his party who are in control in each House. I think he ought to have very great influence, because he is made responsible to the people for what the party does; and if the party is wise, it will bend to his leadership as long as it is tolerable, and especially where it is in performance of promises that the party has made in its platform and on the faith of which it must be assumed to have obtained its power. But such power as he exercises in this way is not within the letter of the law and probably does not come within the legitimate bounds of such an article as this.

The functions of the President which I have enumerated seem very broad; but when many speak of the enormous power of a President, they have in mind that what the President does goes like kissing, by favor. Now the Presidency offers but few opportunities for discretion of that sort. The responsibility of the office is so heavy, the earnest desire of every man who fills the place to deserve the approval of his countrymen by doing the thing that is best for the country so strong, and the fear of just popular criticism so controlling, that it is difficult for one who has been brought through four years of it to remember any personal favor that he was able to confer. There are certain political obligations that the custom of a party requires the President to discharge on the recommendation of Senators and Congressmen, and the men who have had the conduct of the political campaign in which he was successful. I think, as I have already said, that this kind of obligation should be reduced to its lowest terms by a change of the law, and that the custom which has been maintained since the beginning of government and which has not been in the interest of good government, ought to be minimized to a point where it will cease to be harmful. But I refer now to that kind of power that imagination clothes the President and all rulers with, to gratify one man and humiliate another and punish a third, in order to satisfy the whim or the vengeance of the man in power. That does not exist, and the truth is that great as these powers are, when a President comes to exercise them, he is much more concerned with the limitations upon them to see that he does not exceed them, than he is affected by personal gratification over the big things he can do.

The President is given $25,000 a year for travelling expenses; and this enables him to travel in a private car, and it is wise that it should be so. Were he to travel in a Pullman car, where the public could approach him, the ordinarily commendable curiosity of the American people to see their President close at hand would subject to such annoyances both him and the travelling public with whom he might happen to be that both he and they would be made most uncomfortable. There is an impression that the President cannot leave the country and that the law forbids. This is not true. The only provision of law which bears on the subject at all is that which provides that the Vice-President shall take his place when the President is disabled from performing his duties. Now if he is out of the country at a point where he cannot discharge the necessary functions that are imposed on him, such disability might arise; but the communication by telegraph, wireless, and by telephone are now so good that it would be difficult for a President to go anywhere and not be able to keep his subordinates in constant information as to his whereabouts and his wishes. As a matter of fact, Presidents do not leave the country very often. Occasionally it seems in the public interest that they should. President Roosevelt visited the Canal Zone for the purpose of seeing what work was being done on the canal and giving zest to that work by personal contact with those who were engaged in it. I did the same thing later on, travelling, as he did, on the deck of a government vessel which is technically the soil of the United States. The Zone is the soil of the United States. He was not out of the jurisdiction of the United States except for a few hours. He went into the city of Panama, as I did, and dined with the President of the Panamanian Republic. So, too, I dined with President Diaz at Juarez, in Mexico, just across the border from El Paso, but nobody was heard to say that in any of these visits we had disabled ourselves from performing our constitutional and statutory functions.

The assassination of three Presidents has led Congress to provide that the chief of the Secret Service shall furnish protection to the President as he moves about, either in Washington or in the country at large. I presume that experience shows this to be necessary. While President, I never was conscious of any personal anxiety while in large crowds, and I have been in many of them. Yet the record of assaults upon Presidents is such that Congress would be quite derelict if it disregarded it. The necessary precautions are a great burden on the President. He never can go anywhere that he does not have to inflict upon those whom he wishes to see the burden of the presence of a body guard, and it is a little difficult to get away from the feeling that one is under surveillance himself rather than being protected from somebody else. The Civil Service men are level-headed, experienced, and of good manners, and they are wise in their methods and most expert in detecting those from whom danger is most to be expected. I mean the partially demented and “cranks.” If a person is determined to kill a President and is willing to give up his life for it, no such protection will save his victim. But such persons are very rare. The worst danger is from those who have lost part or all of their reason, and whom the presence of a President in the community excites. I may be mistaken, but it seems to me that with the experts that we now have and the system that is now pursued, the assassination of President McKinley at Buffalo might possibly have been avoided. The presence of the assassin with a revolver under his handkerchief would now be detected long before he could get within range of the object of his perverted purpose.

The President is in office for only four years or at most eight, and the social influence that he and his family can exercise is quite limited. It is sufficient for our democratic purposes; but it does not compare with the social influence that is exercised by the head of the state in a country like Great Britain. The truth is that the chief and almost the only power that the King of Britain has, except in an advisory way, is as the social head of the kingdom. The moral influence that he exercises over his court may thus be made strong. It always permeates to those who do not come directly within the court circles. There is, too, a political influence that the King and the royal family can exert in this way, not affirmative and direct, but conserving, softening, and conciliatory, alleviating party bitterness and moderating extreme views. The ancient and still living respect for royalty is strong in itself to discourage violent methods, to compel good manners. In this respect, of course, because the King is permanent during his life and the members of the royal family likewise, this social rule is vastly stronger than that of the President. But in every other respect as between the King of England and the President of the United States, the President really rules within the limit of the functions entrusted to him by the Constitution, while the King has lost much of his former power in the progress of democracy to complete control in Great Britain, and merely reigns as the titular and social head of the state.