chapter xi

. The President may veto a bill because he believes it to be unconstitutional, or because he believes it is unwise or inexpedient, though in both cases a wise executive will be slow to set his judgment against the combined judgment of the members of Congress.

[83] Ex-President Benjamin Harrison, in his book "This Country of Ours," p. 138, thus describes the course which a bill takes after it has passed both houses: "When a bill has passed both houses of Congress and has been signed by the president of the senate and the speaker of the house, it is taken, by the clerk of the committee on enrolled bills, to the Executive Mansion, where the date of its delivery is stamped upon it. The practice is then to send the bill to the head of the department to which its subject matter belongs--to the war department, if to army matters; to the interior, if to pensions, or public lands, or Indian affairs, etc.--for the examination of the secretary, and for a report from him as to any objections that may occur to him. As to the frame of the bill, and as to any constitutional questions involved, the attorney-general is often consulted, though the bill does not relate to his department. The President then takes up the bill, with the report from the department, and examines it, and if he approves writes thereon "Approved," giving the date, and signs his name. The bill, now become a law, is then sent to the state department to be filed and published in the statutes at large."

_No Power to Veto Items in Appropriation Bills._--Unlike the governors of many of the states, he cannot veto particular items in appropriation bills, as a result of which he is sometimes confronted with the embarrassing duty of signing a bill carrying certain appropriations to which he objects, or of vetoing the entire bill. President Cleveland on one occasion vetoed the rivers and harbors bill carrying an appropriation of many millions of dollars rather than approve certain items in it which he considered wasteful and extravagant. If the President had the power to veto particular items in appropriation bills he could prevent useless and extravagant appropriations in many cases without being under the necessity of defeating at the same time those which are desirable and necessary.

_Use of the Veto Power._--The early Presidents either did not make use of the veto power at all, or employed it sparingly. Neither John Adams, nor Thomas Jefferson, nor John Quincy Adams, while in the presidential chair, vetoed any bills; and Washington, Madison, and Monroe together vetoed only eight. Many of the later Presidents used the veto power more freely.

No bill was passed over the veto of a President until the administration of Tyler, when one was so passed. Four bills were passed over the vetoes of Pierce, fourteen over those of Johnson, three over those of Grant, one over a veto of Hayes, one over a veto of Arthur, two over the vetoes of Cleveland, one each over the vetoes of Harrison, Taft, and Wilson.

_Joint Resolutions_ as well as bills are usually presented to the President for his signature, and must be approved before they have any validity, though it has not been the practice to submit to the President, for his approval, joint resolutions proposing amendments to the Constitution. Concurrent resolutions, which do not have the force of law, but are merely expressions of the sense of the legislative department on some question of interest to it alone, do not require the approval of the President.[84]

[84] The distinction between bills, joint resolutions, and concurrent resolutions is discussed on p. 204.

_Importance of the Veto._--The threat of the President to employ the veto may be used to great effect. A strong President who has positive ideas in regard to the kind of legislation which the country needs and which public opinion demands, may compel the adoption in whole or in part of those ideas by the threatened use of the veto. The necessity of obtaining the approval of the President really gives him a powerful share in legislation. Roosevelt, for example, on a number of occasions threatened to veto bills about to be passed by Congress unless they were changed so as to embody the ideas which he advocated, and the threats were not without effect.

=The Pardoning Power of the President.=--The Constitution authorizes the President "to grant reprieves and pardons for offenses against the United States except in cases of impeachment."[85] The President cannot, of course, pardon offenses against state law. Offenses against the postal laws, the revenue laws, the laws against counterfeiting, and the national banking laws are those for which pardons are most frequently sought. Crimes committed in the territories are, however, offenses against the laws of the United States, and are frequently the object of applications for pardon.

[85] Impeachment offenses were excepted for the purpose of preventing the President from granting pardons to his own appointees and thereby shielding them from the consequences of their acts.

For definition of pardon and reprieve, and further discussion of the nature and purpose of the pardoning power, see p. 102-103.

With the exception of the limitation in regard to impeachment offenses, the President's power of pardon is absolute. His power is not restricted by a board of pardons as is that of the governors of some of the states, nor can Congress in any way abridge his power or restrict the effect of a pardon granted by him. Moreover, he may grant a pardon before as well as after conviction, though this is rarely done in the case of individual offenses. It is sometimes done, however, where large numbers of persons have become liable to criminal prosecution for participation in rebellion, resistance to the laws, and similar acts.

_Amnesty._--In such cases the pardon is known as an "amnesty," and is granted by proclamation. Thus in December, 1863, President Lincoln issued an amnesty proclamation offering a full pardon to all persons in arms against the United States provided they would lay down their arms and return to their allegiance. In April, 1865, President Johnson issued a proclamation offering amnesty to all those who had borne arms against the United States, with certain exceptions and subject to certain conditions. The last instance of the kind was the proclamation issued by President Harrison, in 1893, granting amnesty to those Mormons who had violated the anti-polygamy laws of the United States.

_Commutation._--The power to pardon is held also to include the power to commute a sentence from a heavier to a lighter penalty, and also to reduce a fine or remit it entirely.

_Parole._--In 1910, Congress passed a law providing for the release on parole of federal prisoners sentenced to a term of more than one year, except life prisoners, provided their conduct has been satisfactory. At each of the three federal prisons there is a board of parole charged with hearing applications for release.

=Immunity of the President from Judicial Control.=--Being at the head of a coördinate department of the government, the President, unlike other public officers, is not subject to the control of the courts. They cannot issue processes against him, or restrain him or compel him to perform any act. During the trial of Aaron Burr for treason, Chief Justice Marshall issued a subpoena directed to President Jefferson requiring him to produce a certain paper relating to Burr's acts, but the President refused to obey the writ, declaring that if the chief executive could be compelled to obey the processes of the courts he might be prevented from the discharge of his duties. Even if the President were to commit an act of violence, he could not be arrested or in any way restrained of his liberty. The only remedy against acts of violence committed by him is impeachment by the house of representatives and trial by the Senate. If convicted, he must be deprived of his office, after which his immunity ends and he is liable to prosecution and trial in the ordinary courts as any other offender. The principle upon which the President is exempt from the control of the courts is not that he can do no wrong, but that if he were subject to judicial restraint and compelled to obey the processes of the courts, the administration of the duties of his high office might be interfered with.

Nevertheless, the Supreme Court does not hesitate to exercise control over the subordinates through whom the President acts in most cases, and it will refuse to sanction orders or regulations promulgated by him if they are unconstitutional. To this extent, his acts are subject to judicial control.

=References.=--ANDREWS, Manual of the Constitution, pp. 180-201. BEARD, American Government and Politics, ch. x. BRYCE, The American Commonwealth (abridged edition), ch. v. FAIRLIE, National Administration, chs. i-ii. HARRISON, This Country of Ours, ch. vi. HINSDALE, American Government, ch. xxxii.

=Documentary and Illustrative Material.=--1. Copy of an inaugural address of the President. 2. Copy of an annual message of the President. 3. Copies of executive orders and proclamations. 4. Copies of veto messages.

RESEARCH QUESTIONS

1. What is your opinion of Sir Henry Maine's saying that the President of the United States is but a revised edition of the English King?

2. How do the powers of the President compare in importance and scope with those of the King of England?

3. Have the President's powers increased or decreased since 1789? Give your reasons.

4. Name some of the Presidents who were notable for the vigorous exercise of executive power.

5. What is your opinion of the position taken by President Roosevelt that the power of the President should be increased by executive interpretation and judicial construction?

6. Is the President the judge of the extent and limits of his own powers? If not, what authority is?

7. Do you think the President ought to be prohibited from removing officers except for good cause? Ought the consent of the senate to be required in all cases of removal?

8. What is your opinion of the proposition that the members of the cabinet should be elected by the people?

9. Why are the powers of the President so much more extensive in time of war than in time of peace?

10. What were the principal recommendations made by the President in his last annual message?

11. Do you think he should be allowed to grant pardons _before_ conviction? Would it not be well to have a federal board of pardons whose approval should be necessary to the validity of all pardons issued by the President?

12. In the exercise of his duty to enforce the laws, may the President interpret their meaning in case of doubt?

13. To what extent ought the President in making appointments to take into consideration the politics of the appointee? To what extent should he be governed by the recommendations of members of Congress?

14. Why should the executive power be vested in the hands of a single person while the judicial and legislative powers are vested in bodies or assemblies?

15. Do you think the present salary allowed the President adequate? How does it compare with the allowance made to the King of England? the President of France?

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