CHAPTER XX

THE RELATIONS OF CONGRESS TO THE PRESIDENT 1

So far as they are legislative bodies, the House and the Senate have similar powers and stand in the same relation to the executive. We may therefore discuss them together, or rather the reader may assume that whatever is said of the House as a legislature is also true of the Senate. The Senate is also a semiexecutive council, intended to advise and to restrain the President, but its functions in that capacity have been already discussed.3

Although the Constitution forbids any Federal official to be chosen a member of either the House or the Senate, there is nothing in it to prevent officials from speaking there; as indeed there is nothing to prevent either House from assigning places and the right to speak to any one whom it chooses. Now, however, no Federal officer appears on the floor. In the early days Washington came down and delivered his opening speech. Occasionally he remained in the Senate during a debate, and even expressed his opinion there. When Hamilton, the first secretary of the treasury, prepared his famous report on the national finances, he asked the House whether they would hear him speak it, or would receive it in writing. They chose the latter course, and the precedent then set has been followed by

1 The relations of the various organs of government to one another in the United States are so interesting and so unlike those which exist in most European countries, that I have found it necessary to describe them with some minuteness, and from several points of view. In this chapter an account is given of the actual working relations of the President and Congress; in the next chapter the general theory of the respective functions of the executive and legislative departments is examined, and the American view of the nature of these functions explained; while in Chapter XXV. the American system as a whole is compared with the so-called "cabinet system" of England and her colonies.

The House has the exclusive initiative in revenue bills; but this privilege does not affect what follows. 3 See above, Chapter XI.

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subsequent ministers, while that set in 1801 by President Jefferson when he transmitted his message in writing instead of delivering a speech, has been similarly respected by all his successors. Thus neither House now hears a member of the executive. A committee may request the attendance of a minister and examine him, but he appears before it only as a witness to answer questions, not to state and argue his own case. There is therefore little direct intercourse between Congress and the administration, and no sense of interdependence and community of action such as exists in other parliamentary countries.2 Be it remembered also that a minister may never have sat in Congress, and may therefore be ignorant of its temper and habits. Three members of Mr. Cleveland's present cabinet have never had a seat in either House. The President himself, although he has been voted into office by his party, is not necessarily its leader, nor even one among its most prominent leaders. Hence he does not sway the councils and guide the policy of those members of Congress who belong to his own side. The expression of his wishes conveyed in a message has not necessarily any more effect on Congress than an article in a prominent party newspaper. No duty lies on Congress to take up a subject to which he has called attention as needing legislalation; and, in fact, the suggestions which he makes, year after year, are usually neglected, even when his party has a majority in both Houses, or when the subject lies outside party lines.

The President and his cabinet have no recognized spokesman

1 Hamilton, however, was, while secretary, frequently present in Congress and addressed it. Nor has any rule ever been made by either House to prevent a secretary from doing so now. It is mere matter of custom. A bill was brought in some years ago giving seats in both Houses of Congress to cabinet ministers, and permitting them to speak on matters relating to their department, but not to join in general debate. This was provided in the Constitution of the Southern Confederacy (see note to Chapter XXVI. at the end of this volume). The President may of course come into the Senate, though he does not now address it. He does not go into the House of Representatives. Nor has any English king entered the House of Commons, except Charles I. in 1642, on the occasion of his attempt to seize the five members, when, says the Journal, "His Majesty came into the House and took Mr. Speaker's chair: 'Gentlemen, I am sorry to have this occasion to come unto you.' The results did not encourage his successors to repeat the visit. But Charles II. and Anne were sometimes present during debates in the House of Lords; and there would not, it is conceived, be anything to prevent the Sovereign from being present now.

2 The House some years ago passed a bill for transferring Indian affairs from the Secretary of the Interior to the Secretary of War without consulting either official.

in either House. A particular senator or representative may be in confidential communication with them, and be the instrument through whom they seek to act; but he would probably disavow rather than claim the position of an exponent of ministerial wishes. The only means the President possesses of influencing members of Congress is through patronage. He may give places to them or their friends; he may approve or veto bills in which they are interested; his ministers may allot lucrative contracts to their nominees. This power is considerable, but covert, for the knowledge that it was being used might damage the member in public estimation and expose the executive to imputations. The consequence of cutting off open relations has been to encourage secret influence, which may of course be used for legitimate purposes, but which, being exerted in darkness, is seldom above suspicion. When the President or a minister is attacked in Congress, it is not the duty of any one there to justify his conduct. The accused official may send a written defence or may induce a member to state his case; but this method lacks the advantages of the European parliamentary system, under which the person assailed repels in debate the various charges, showing himself not afraid to answer fresh questions and grapple with new points. Thus by its exclusion from Congress the executive is deprived of the power of leading and guiding the legislature and of justifying in debate its administrative acts.

Next as to the power of Congress over the executive. Either House of Congress, or both Houses jointly, can pass resolutions calling on the President or his ministers to take certain steps, or censuring steps they have already taken. The President need not obey such resolutions, need not even notice them. They do not shorten his term or limit his discretion.1 If the resolution be one censuring a minister, or demanding his dismissal, there is another ground on which the President may disregard it. The act is in law not the minister's act, but that of the President himself, and he does not therefore escape responsibility by throwing over his adviser.

1 In England a resolution of the House of Commons alone is treated as imperative in matters lying within the discretion of the executive, but then the House of Commons has the power of dismissing the Government if its wishes are disregarded. There have even been instances of late years in which the executive has ceased to put in force the provisions of an unrepealed statute, because the House of Commons has expressed its disapproval of that statute.

Either House of Congress can direct a committee to summon and examine a minister, who, though he might legally refuse to attend, never does refuse. The committee, when it has got him, can do nothing more than question him. He may evade their questions, may put them off the scent by dexterous concealments. He may with impunity tell them that he means to take his own course. To his own master, the President, he standeth or falleth.

Congress may refuse to the President the legislation he requests, and thus, by mortifying and embarrassing him, may seek to compel his compliance with its wishes. It is only a timid President, or a President greatly bent on accomplishing some end for which legislation is needed, who will be moved by such tactics.

Congress can pass bills requiring the President or any minister to do or abstain from doing certain acts of a kind hitherto left to his free will and judgment, may, in fact, endeavour to tie down the officials by prescribing certain conduct for them in great detail. The President will presumably veto such bills, as contrary to sound administrative policy. If, however, he signs them, or if Congress passes them by a two-thirds vote in both Houses over his veto, the further question may arise whether they are within the constitutional powers of Congress, or are invalid as unduly trenching on the discretion which the Constitution leaves to the President. If he (or a minister), alleging them to be un constitutional, disobeys them, the only means of deciding whether he is right is by getting the point before the Supreme Court as an issue of law in some legal proceeding. This cannot always be done. If it is done, and the court decide against the President, then if he still refuses to obey, nothing remains but to impeach him.

Impeachment, of which an account has already been given, is the heaviest piece of artillery in the congressional arsenal, but because it is so heavy it is unfit for ordinary use. It is like a hundred-ton gun which needs complex machinery to bring it into position, an enormous charge of powder to fire it, and a large mark to aim at. Or to vary the simile, impeachment is what physicians call a heroic medicine, an extreme remedy, proper to be applied against an official guilty of political crimes, but ill adapted for the punishment of small transgressions. Since 1789 it has been used only once against a President, and then, although that President (Andrew Johnson) had for two years constantly, and with great intemperance of language, so defied and resisted Con gress that the whole machinery of government had been severely

strained by the collision of the two authorities, yet the Senate did not convict him, because no single offence had been clearly made out. Thus impeachment does not tend to secure, and indeed was never meant to secure, the co-operation of the executive with Congress.

It accordingly appears that Congress cannot compel the dismissal of any official. It may investigate his conduct by a committee and so try to drive him to resign. It may request the President to dismiss him, but if his master stands by him and he sticks to his place, nothing more can be done. He may of course be impeached, but one does not impeach for mere incompetence or laxity, as one does not use steam hammers to crack nuts. Thus we arrive at the result, surprising to a European, that while Congress may examine the servants of the public to any extent, may censure them, may lay down rules for their guidance, it cannot get rid of them. It is as if the directors of a company were forced to go on employing a manager whom they had ceased to trust, because it was not they but the shareholders who had appointed him.

There remains the power which in free countries has been long regarded as the citadel of parliamentary supremacy, the power of the purse. Congress has the sole right of raising money and appropriating it to the service of the state. Its management of national finance is significantly illustrative of the plan which separates the legislative from the executive. It has been shown in a preceding chapter that in this supremely important matter of raising and applying the public revenue, the executive government, instead of proposing and supervising, instead of securing that each department gets the money that it needs, that no money goes where it is not needed, that revenue is procured in the least troublesome and expensive way, that an exact yearly balance is struck, that the policy of expenditure is self-consistent and reasonably permanent from year to year, is by its exclusion from Congress deprived of influence on the one hand, of responsibility on the other. The chancellorship of the exchequer, to use an English expression, is put into commission, and divided between the chairmen of several unconnected committees of both Houses. A mass of business which, as English experience shows, specially needs the knowledge, skill, and economical conscience of a responsible ministry, is left to committees which are powerful but not responsible, and to Houses whose nominal

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