The American Commonwealth. Viscount James Bryce
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It need hardly be added that the “courtesy of the Senate” would never have attained its present strength but for the growth, in and since the time of President Jackson, of the so-called Spoils System, whereby holders of federal offices have been turned out at the accession of a new president to make way for the aspirants whose services, past or future, he is expected to requite or secure by the gift of places.16
The right of the president to remove from office has given rise to long controversies on which I can only touch. In the Constitution there is not a word about removals; and very soon after it had come into force the question arose whether, as regards those offices for which the confirmation of the Senate is required, the president could remove without its consent. Hamilton had argued in the Federalist (though there is reason to believe that he afterwards changed his opinion) that the president could not so remove, because it was not to be supposed that the Constitution meant to give him so immense and dangerous a reach of power. Madison argued soon after the adoption of the Constitution that it did permit him so to remove, because the head of the executive must have subordinates whom he can trust, and may discover in those whom he has appointed defects fatal to their usefulness. This was also the view of John Marshall. When the question came to be settled in the Senate during the presidency of Washington, Congress, influenced perhaps by respect for his perfect uprightness, took the Madisonian view and recognized the power of removal as vested in the president alone. So matters stood till a conflict arose in 1866 between President Johnson and the Republican majority in both houses of Congress. In 1867, Congress fearing that the president would dismiss a great number of officials who sided with it against him, passed an act, known as the Tenure of Office Act, which made the consent of the Senate necessary to the removal of officeholders, even of the president’s (so-called) cabinet ministers, permitting him only to suspend them from office during the time when Congress was not sitting. The constitutionality of this act has been much doubted, and its policy is now generally condemned. It was a blow struck in the heat of passion. When President Grant became president in 1869, the act was greatly modified, and in 1887 it was repealed.
How dangerous it is to leave all offices tenable at the mere pleasure of a partisan executive using them for party purposes, has been shown by the fruits of the Spoils System. On the other hand a president ought to be free to choose his chief advisers and ministers, and even in the lower ranks of the civil service it is hard to secure efficiency if a specific cause, such as could be proved to a jury, must be assigned for dismissal.
The Constitution permits Congress to vest in the courts of law or in “the heads of departments” the right of appointing to “inferior offices.” This provision has been used to remove many posts from the nomination of the president, and by the Civil Service Reform Act of 1883 competitive examinations were instituted for about thirty-four thousand. Of the now enormous number of posts—there were, in 1909, 367,794 officers and employees of the executive civil service—nearly two-thirds were in that year subject to such examinations. A greater number, however, including many postmasterships and many places under the Treasury, remain in the gift of the president;17 while even as regards those which lie with his ministers, he may be invoked if disputes arise between the minister and politicians pressing the claims of their respective friends. The business of nominating is in ordinary times so engrossing as to leave the chief magistrate of the nation little time for his other functions.
Artemus Ward’s description of Abraham Lincoln swept along from room to room in the White House by a rising tide of office-seekers is hardly an exaggeration. From the 4th of March, when Mr. Garfield came into power, till he was shot in the July following, he was engaged almost incessantly in questions of patronage.18 Yet the president’s individual judgment has little scope. He must reckon with the Senate; he must requite the supporters of the men to whom he owes his election: he must so distribute places all over the country as to keep the local wire-pullers in good humour, and generally strengthen the party by “doing something” for those who have worked or will work for it. Although the minor posts are practically left to the nomination of the senators or congressmen from the state or district, conflicting claims give infinite trouble, and the more lucrative offices are numerous enough to make the task of selection laborious as well as thankless and disagreeable. In every country statesmen find the dispensing of patronage the most disagreeable part of their work; and the more conscientious they are, the more does it worry them. No one has more to gain from a thorough scheme of civil service reform than the president. The present system throws work on him unworthy of a fine intellect, and for which a man of fine intellect may be ill qualified. On the other hand the president’s patronage is, in the hands of a skilful intriguer, an engine of far-spreading potency. By it he can oblige a vast number of persons, can bind their interests to his own, can fill important places with the men of his choice. Such authority as he has over the party in Congress, and therefore over the course of legislation, such influence as he exerts on his party in the several states, and therefore over the selection of candidates for Congress, is due to his patronage. Unhappily, the more his patronage is used for these purposes, the more it is apt to be diverted from the aim of providing the country with the best officials.
In quiet times the direct legal power of the president is not great, but his influence may be great if he combines tact with courage. He is hampered at every turn by the necessity of humouring his party. The trivial and mechanical parts of his work leave him too little leisure for framing large schemes of policy, while in carrying them out he needs the cooperation of Congress, which may be jealous, or indifferent, or hostile. His power to affect legislation largely depends on his personal capacity for leadership, and of course also on the strength of his party