chapter x

, pages 190-191.

[76] The only officers appointed by the courts of law are clerks, reporters, and other minor ministerial officers; but there are a large number of inferior officers in the various departments who are appointed by the heads of departments.

_Appointments to Minor Positions_ are often made upon the recommendations of the representative in Congress from the district in which the office is located, though many such appointments are now made on the basis of examinations, under civil service rules. Obviously the President or the head of the department could not fill the thousands of minor positions of this sort without reliance upon the advice of others. They cannot investigate personally every application for appointments of this kind. It is natural, therefore, that they should accept the recommendations of members of Congress, who are more apt to be acquainted with the qualifications of applicants in their districts, and who are familiar with local conditions.

=Power of Removal.=--While the Constitution expressly authorizes the President to appoint officers, with the consent of the senate, it is completely silent on the question of whether he may remove an officer, either with or without the consent of the senate. The only provision in the Constitution in regard to removal is that which relates to impeachment. It might, therefore, be contended that the only constitutional method of depriving an incumbent of an office to which he has been appointed is by impeachment. But this process of removal is so cumbersome and unwieldy that if it were the only means of getting rid of incompetent office-holders many unfit persons would remain in office indefinitely, and, besides, it would be impossible for the President, upon whom the responsibility for the enforcement of the laws rests, to surround himself with officials in whose integrity and fitness he has confidence. Moreover, to resort to the process of impeachment to remove a person from a petty inferior office would be very much like shooting birds with artillery intended for destroying battleships.

From the first, therefore, it was recognized that there was another process of removal than by impeachment. But there was a difference of opinion as to whether that power lay with the President alone, or whether he could remove only with the consent of the senate, as in the case of appointments; or whether the power lay with Congress to prescribe how removals might be made. The matter was threshed over in the first Congress after the Constitution went into effect, and it was decided that the President might remove alone, without the necessity of securing the consent of the senate. But there was considerable fear that he might abuse the power, and Madison is said to have declared that the wanton removal of a meritorious officer would subject him to impeachment.

_Early Practice._--For a long time the power of removal was used sparingly. Several of the early Presidents, in fact, made no removals at all, and during the first forty years of our national existence the total number of officers removed probably did not exceed 100. With the incoming of President Jackson, however, what is known as the _spoils system_ was introduced; that is, large numbers of office-holders were removed in order to make places for those who had rendered political services to the party in power. Henceforth appointments were made largely as rewards for party service, often without regard to merit and fitness. Nevertheless, the right of the President to make removals for any cause that seemed to him proper, or for any cause whatsoever, continued to be recognized and acquiesced in by all parties until the breach occurred between President Johnson and Congress in 1867.

_Act of 1867._--The action of President Johnson in removing officials who were in sympathy with Congress greatly offended that body, and in 1867 a tenure of office act was passed forbidding the President to make removals except with the consent of the Senate.[77] Thus the custom which for seventy-eight years had recognized the unlimited right of the President to remove officers without the necessity of securing the consent of the senate was now reversed. The violation of this law by President Johnson was the chief cause of his impeachment in 1868. With the incoming of President Grant, however, the law was modified, and in 1887 it was repealed. Thus after a brief interval the original interpretation was reverted to, and it has been followed ever since.

[77] While Congress was not in session, the President was to be allowed the right to "suspend" officers for good cause, but he was required to report all suspensions to the Senate at its next meeting and in case it refused to concur in the suspension, the suspended officer was to be allowed to resume his office.

_The Present Rule._--The right of the President to remove any federal officer appointed by him, except the judges, for any cause whatsoever, is now recognized, and Congress cannot abridge that right by prescribing the conditions under which removals may be made. His power in this respect is absolute and unlimited and may be employed for rewarding his political friends and punishing his enemies as well as for getting rid of incompetent and unfit persons in the public service.

=Power of Direction.=--Resulting from the power of removal is the power of the President to direct the officers whom he appoints, in regard to the discharge of their duties. Through the threat of removal, he may compel obedience to his orders, though of course he cannot require an officer to do an act which would amount to a violation of the law. Many of the duties of federal officers are prescribed by law, and the President cannot change these duties or require an officer to do his duty differently from the way in which the law requires him to do it. But the law expressly recognizes that the President has the power to direct many officers as to their duties. Thus the secretary of state in the negotiation of treaties and the settlement of disputes with foreign countries is almost wholly under the control of the President. The President may instruct him to begin negotiations with a particular government or to cease negotiations, and the secretary must obey his orders. So the President may direct the secretary of war in regard to the disposition of the armed forces. In the same way he may order the attorney-general to prosecute a "trust" or institute proceedings against any violator of the federal laws, or may direct him to drop proceedings once begun. Some officers, however, such as the secretary of the treasury and the postmaster-general, are less under the direction of the President, their duties being prescribed with more or less detail by acts of Congress.[78]

[78] The act organizing the treasury department requires the secretary of the treasury to make his annual report to Congress, while the other cabinet heads make their reports to the President. It was the evident intention of Congress to keep the secretary of the treasury more closely under the control of the representatives of the people.

=The Civil Service System.=--For a half century following the introduction of the spoils system by President Jackson, both parties acted on the principle that the offices of the federal government were the legitimate spoils of victory at the polls. Under such circumstances the public service was demoralized and enfeebled, and the time of the President and heads of the departments was taken up with considering applications for office when it should have been devoted to more important matters. After the Civil War, a movement was started which had for its purpose the establishment of the merit system in the public service and the elimination of the spoils system.

_The Civil Service Law of 1883._--The assassination of President Garfield in 1881 by a disappointed office seeker aroused public opinion to some of the worst evils of the existing system, and in obedience to the demands of public sentiment, Congress in 1883 enacted the civil service law which forms the basis of the present civil service system. This law provided for the creation of a commission of three persons, not more than two of whom should belong to the same political party. The commission was charged with forming rules for making appointments to the public service, and with carrying out the provisions of the law.

_The Classified Service._--The act provided for the classification of the positions in the departments at Washington and in the customhouses and post offices where at least fifty persons were employed, and for the holding, under the supervision of the commission, of competitive examinations to test the fitness of applicants for appointments to positions in the classified service. The classified service now includes the departmental service at Washington, the customs service, the post office service, the railway mail service, the Indian service, the internal revenue service, and the government printing service.

_Extent of the Classified Service._--At first the law applied to only about 14,000 positions, but since then the number has been increased from time to time by the creation of new offices and by orders of Presidents extending the rules to other classes of positions. A large extension, for example, was made by President Cleveland in 1896. President Roosevelt also made large extensions, so that when he went out of office there were about twice as many positions under the rules as there were when he became President. In 1912 President Taft added over 36,000 fourth-class postmasters and 20,000 artisans employed in the navy yards; and in 1917 President Wilson placed 10,000 first-, second-, and third-class postmasters under the rules. Of 517,805 officers and employees in the executive civil service in 1917, 326,899 were subject to competitive examination.

_Exempt Positions._--Among the positions not under the rules and for which competitive examinations are not required are the more important presidential offices such as cabinet officers, assistant secretaries, chiefs of bureaus, United States attorneys, marshals, judges, ambassadors and ministers, besides a large number of minor officials like private secretaries. The income tax and currency acts of 1913 exempted from the operation of the civil service laws employees who collect the income tax and employees of the Federal Reserve Board. By an act of the same year deputy collectors of internal revenue and deputy marshals were withdrawn from the operation of the laws. These acts have been criticized by civil service reformers.

_Examinations._--Civil service examinations are held at least twice each year in every state and territory, and any citizen of the United States is eligible to take the examination for any position to be filled. The commission keeps a list of eligibles, that is, of persons who have passed an examination, and whenever an appointment is to be made, it certifies to the appointing authority a list of those who are qualified, and from the three standing highest on the list the appointment must be made. But in making the appointments preference must be given to persons honorably discharged from the military or naval service by reason of their disability resulting from wounds or sickness. The examinations are required to be practical in character and of such a nature as to test, as far as possible, the capacity and fitness of the applicants to discharge the duties of the position for which they desire an appointment.

No appointment is permanent until after six months of probationary service, during which time the appointee must have demonstrated his capacity for the office. The law also prohibits members of Congress from making recommendations for appointments to positions in the classified service except as to the character and residence of the applicant, and also forbids the levying of assessments on government employees for campaign purposes or the solicitation of contributions from employees.[79]

[79] By a law of 1907, employees in the classified service are forbidden to take active part in political campaigns, and this prohibition has been construed to forbid service on political committees, service as delegates to party conventions, publication of newspaper articles of a political nature, membership in political clubs, circulation of petitions of a political character, etc.

_How Removals are Made._--When an appointment has been made in pursuance of the civil service rules, the appointee is protected from removal for political reasons. The rules now in force declare that removals from the competitive service can be made only for just cause and for reasons stated in writing, with an opportunity to the employee to be heard. "Just cause" is defined as being any cause not merely political or religious, which will promote the efficiency of the service.

_The Effect_ of the competitive system has been to give the public service the character of permanency and increased efficiency. The administration may change at Washington, but the more than 200,000 officials under the civil service rules are not affected thereby. There is no longer a "clean sweep" at the beginning of every administration, no longer the demoralization that once characterized the government service when a new party came into power. Thus the whole tone of the public service has been improved, and the President and heads of the departments have been partly relieved from the burden of listening to the appeals of the army of office seekers who used to descend upon Washington at the beginning of every new administration.

=Management of Foreign Affairs.=--The United States as a leading member of the family of nations has an extensive intercourse with other countries. There is no nation with which it has not entered into relations of some kind or another. With every civilized country and some that are not civilized, we have one or more treaties regulating certain of our relations with them.

_How Treaties are Negotiated._--The President, by and with the advice and consent of the senate, two thirds of the members concurring, is charged with the negotiation of all treaties. The share of the senate in the negotiation of all treaties has already been discussed in