Executive Aggression
NOVEMBER, 1908
THERE is no present fact in the actual workings of American governmental machinery which is more obvious than the great increase in power and influence of executive authority, and the corresponding decline of that of the law-maker. This involves a great change from the conditions which existed when our national life began. The colonial governor was the hated representative of the Crown. His every act was watched with suspicion and jealousy by the legislatures which represented the people, and stood between them and royal tyranny. This attitude continued long after the freedom of our country had been established, and the governor had become the elect of the people rather than the choice of the Crown. The authority of the governor was limited not only by law, but by public opinion, because the old fear of executive despotism still continued and died hard.
In our national life the historians tell us that the very existence of a federal executive, separate and uncontrolled by Congress, was due to a mistake, to a then current misconception of the British Constitution, and to the adoption by us of what Mr. Bagehot describes as the “literary theory” of that Constitution, rather than its fact. Roger Sherman, in the Constitutional Convention, suggested that “the executive magistracy is nothing more than an institution for carrying the will of the legislature into effect; that the person or persons occupying that office ought to be appointed by, and to be accountable to, the legislature only, which was the depository of the supreme will of the people. As they were the best judges of the business which ought to be done by the executive department, he wished the number might not be fixed, but that the legislature should be at liberty to appoint one or more as experience might dictate.” Roughly speaking, this was and is the English system, under which there is no separation of executive and legislative functions, but the government is responsible for the enactment of new laws and the enforcement of old ones.
Owing to a misapprehension of what the English system was, Sherman’s suggestion was not followed; but the failure to accept his proposition was not due to any dissent in the convention from Sherman’s notion of what were the essential functions of the executive, and the relatively greater importance of the legislative, branch of government.
It is quite the fashion to-day to look back to the era of such opinions, to consider the jealously limited authority of the early colonial governors and the original concept of the functions of the federal executive, as expressed by Sherman, and contrast them with the current practice and opinions as to these offices to-day.
There has been a great increase in the power and influence of executive officers since the days when the memory of the crown governors was fresh in the minds of people, when the first president was suspected of a desire to be a king. In the past decade that growth of power has been most marked. Governors are taking in state matters positions of authority which would have been impossible a century ago. The president exercises a power to-day over the affairs of the nation which neither Congress nor the people would have tolerated in George Washington.
These changes, these developments of executive power, have been made without any substantial change in our state constitutions and with none in that of the nation. The letter of the law remains. Nominally, the system is as our fathers made it. In practice, it is essentially a different thing. This variance between our principles and our practice has not developed unnoticed. It has been observed and has been often discussed. This growth of executive authority has not taken place without opposition from minds familiar with the history of our Constitution.
Critics whose voices have at times been raised in protest against it have described it as executive aggression. The phrase itself implies hostility. It implies usurpation of ungranted power. Presumably what those who use the phrase mean is that, notwithstanding the clear language of state and national constitutions which describe and define the power of executive, legislative, and judicial officers; despite the power of the legislatures to assert and to maintain their own prerogatives; despite the great and peculiar power of our courts to declare the constitutional limitations of executive authority, the governor in the state and the president in the nation are exercising power in excess of that conferred by the constitutions made by the people.
If this charge related solely to some one person, if it were merely that some one particular governor had succumbed to the itch for power, if it were only that the President now in office had been guilty, as his opponents have often charged, of dictating legislation, of domineering over Congress, and of talking about his policies and purposes with a directness and frankness which would have made the early congresses gasp and stare, it would be less important. But it is a common and general charge, and has been made in recent years against almost every governor who has accomplished anything and who has left office with a record of public service.
Within certain narrow limits, this matter of executive aggression is a legal question. Again and again, in solemn conclave, the Bar has discussed it, and asserted and reasserted the constitutional requirements that executive, legislative, and judicial functions must be kept separate. Learned lawyers familiar with the letter of the law and with the ancient theory of the division of governmental power, have sounded a dignified note of warning against executive poachings of power. Many addresses on specific instances of such alleged usurpations have been made by distinguished jurists, but for some reason these protests seem to have had little effect either on executive conduct or upon the public mind.
The cases of executive aggression, however, involving an actual overstepping of constitutional boundaries, have been few, and when they have occurred their seriousness has often been exaggerated. What we have to consider is not so much a matter of law as one of public opinion. It is the change in the attitude of the people toward the executive office, and the enormous increase in the power of the executive which has resulted from it.
The criticisms from the jurists have considered rather the letter of the law than the spirit of the people, and have generally taken the form of a more or less acrimonious arraignment of some particular executive for some particular act of alleged transgression, as though in him and his Teachings for power lay the whole source and origin of the supposed offense. Some of these critics are distinguished statesmen and well-known lawyers, and it is with considerable hesitation that I venture to suggest that such criticisms fail to take into consideration the real cause of the conditions against which they protest, a cause which seems apparent on taking a broader field of observation.
The pith of this executive aggression business is in the fact that the people have come to expect something to-day of the executive, which a quarter of a century ago they did not expect or require. Consider our actual practice. When we elect a president, we elect a man whom the majority believes to be wise enough, and strong enough, to rule the nation. We expect him to carry into effect policies which he deems advantageous to the common weal, by causing Congress to pass his measures, using upon Congress such compulsion as may be necessary to have it accept his purposes. We expect the president and his officers to initiate constructive legislation, and to attend to getting it made into law. We even expect him to decide what particular laws are to be enforced by his law officers.
Because we expect that when he is elected he will do all these things, we are before election interested in knowing his ideas, what policies he has, and what laws he proposes to enforce. If, after election, he fails to accomplish the things he has told us about before election, if Congress rejects his measures, if he does not put his policies into law, if he enforces unpopular law, he need not try to shift the blame to others. It is he, not Congress, who has failed us. If he fails to get congressional support, he has simply shown himself inefficient. We may elect senators and representatives, but it is the tendency to hold the president responsible for what they do. We expect him to exercise dominion, not only over Congress, but over the law itself. We expect him to use executive wisdom in selecting what laws shall be enforced, and in deciding not to enforce bad laws. We make much the same kind of demand upon our governors in the states.
Does this statement of our expectations seem exaggerated ? Does it represent only the demands of the foolish or of those unfamiliar with our institutions and ignorant of the exact legal limitations of executive authority ? Is it too much to say, for example, that we expect the president or the governor to decide what laws shall be enforced and what let alone, although his oath of office gives him no such discretion ? Take a practical illustration of the spirit which demands this form of executive aggression, an expression coming not from an ignorant source, but from one of the most conservative and law-wise of New York papers, one famous for printing all the news that is fit to print.
In an editorial calling the President to task for what it describes as his “illjudged zeal” in enforcing the Sherman Anti-Trust act, it said recently, “ He is the only public man who has declared that he would enforce the law although he was aware of its defects. How much better would have been his position, and the country’s position, if he had asked indulgence in the non-enforcement of the law until it was fit to be enforced.” What the paper wants the President to do is to commit what it describes as “a technical neglect of his official oath,” by refusing to enforce a law which the newspaper, the President himself, and a great many other people think is hopelessly crude and illogical, but which thousands of fervent souls consider an enactment paralleled only by the Ten Commandments. Any newspaper reader would have little difficulty in finding editorials similar in spirit to the one just quoted.
The theory of responsibility which puts upon the executive the duty to exercise executive common sense in selecting the laws which “deserve to be enforced,” is not unrecognized even in quarters from which strenuous opposition would seem most to be expected: that is, the legislature itself. A rather bleak, elderly little lawyer with heavy glasses was addressing one of the committees of the New York Legislature some six years ago. He was complaining bitterly about the hardships of a factory law, whose provisions he assured the much bored committee pressed heavily upon a certain large Buffalo plant which he represented. In the midst of his argument one of the senators interrupted him. “Let me ask you a question. Has the Commissioner of Labor been unreasonable in the way he has enforced it on you ? ” The lawyer wiped his glasses and smiled deprecatingly. “Why, he hasn’t prosecuted us, sir.” “Has he prosecuted anybody so far as you know?” persisted his questioner. “Why, no, not so far as I know, but the law is there, and —” “ Do you mean to tell me,” interrupted the senator, in a voice swelling with indignation, “that you have been wasting half an hour of this committee’s time on a statute which has occasioned you absolutely no grievance — which, so far as you know, has n’t been unreasonably or unjustly enforced against anybody?”
This question to all practical purposes closed the debate. The little man with the glasses endeavored to stem the tide running strongly against him by futile remarks about the law being on the statute books, that it might be enforced, and so forth, until the chairman mercifully finished him by intimating that they had a long calendar and must now take up Senate Bill No. 269.
Into my sympathetic ears the little man later poured his opinion of the committee. A few of his phrases were quite choice, and I retailed some of them later to the Socratic senator who had been the subject of them. He listened goodhumoredly. “Theoretically he was right,” he admitted, “ but where should we be if we spent our time repealing all the dead-letter statutes?”
The senator who saw no special reason for repealing a bad law provided it was not enforced, doubtlessly considered himself a practical man. He expected the governor’s representative, the commissioner of labor, to use common sense in enforcing the laws which were his to enforce. If the law proved to be an unreasonable one and not “practical,” he expected the executive through this commissioner to use discretion and common sense again by letting it alone. If this common sense was being used, — if no one was being prosecuted, — then there was no urgent need that the law should be repealed. Hence, while in theory it ought to be repealed, practically there was no need that a busy legislature, struggling with a long calendar of proposed new laws, should be troubled with it. The senator was expressing the new political theory, which slowly but certainly is growing up in this country, and which is in direct conflict with the old constitutional theory of divided and coördinate powers. It may be described as the theory of executive common sense, a theory the application of which doubles the responsibility of the executive by diminishing that of the legislature almost to the vanishing point.
When the legislature itself recognizes this theory, and in instances like this affirms the right and duty of the executive to select the laws which ought to be enforced; when the people demand from the executive that he use a strong hand upon the makers of laws to compel them to enact such new laws as he desires; when the public in almost every controversy between the state governor and the legislature, or between the president and Congress, is to be found lined up in support of the executive and clamorous for the submission of the legislative branch to the will of the executive, what does it all mean ? What has brought this change about ?
To a very marked extent this change is due to our American methods of legislation. We are a practical people, and have confronting us a distinctly practical problem which presents itself to us in about this fashion. Our legislatures, most of which have bi-annual sessions, pass every two years some 25,000 separate laws. In 1906-07. for example, there were passed by Congress and state legislatures 25,446 acts and 1576 resolutions. At a conservative estimate, twenty thousand of these were local laws, affecting separate cities and towns and having no general scope whatever, or were special bills relating to private interests only. In England in the entire nineteenth century there were enacted some twenty-one thousand special and local bills. In America our legislatures pass as many of these laws every two years. In 1906 and 1907, while our American legislatures were turning out these twenty-five thousand laws and fifteen hundred resolutions, the attention of the British Parliament was concentrated upon 114 public acts and general laws.
Sixty years ago England laid the foundations of a scientific plan for handling local and private bills. There had been political corruption in the granting of franchises in England, as well as in our own country, in the early days of railroad development. The unscrupulous who sought unjust advantages and special privileges through legislation, applied to Parliament then, much as they apply to our state legislatures now. The Standing Orders adopted in 1847 in England afford a method of dealing with local and private measures, by which an investigation closely akin to a judicial trial by a parliamentary tribunal is made of each of these bills, on fullest advance notice to every public and private interest which its enactment might affect. Under this plan, corruption has lost the secrecy which gives it its main opportunity, and the undivided time of Parliament itself is devoted to more important public matters. In 1907, substantially the entire law-making work of Parliament itself is embodied in 56 general public acts, contained in 293 printed pages. In the same year, the State of New York enacted 754 laws, occupying 2500 pages.
The legislative methods of that state are characteristic American methods. Every municipality in New York, for example, goes to the legislature for every amendment to its local charter. When Buffalo wants a Polish interpreter for a police court, when Yonkers wants to raise the salary of its city judge, when Cohoes wants to build a bridge, or Dunkirk to build sewers, when Fulton wants some new fire-hose for its fire department, or Little Falls wants to raise the pay of its police, when Albany wants to fix the salary of a deputy superintendent of an almshouse, they go to the legislature of the state and ask for a law.
What does an assemblyman or senator from New York City know about the necessity for a Polish interpreter in a Buffalo police court, or for hose in the fire department of Fulton ? Why should he know anything about such remote matters ? The prevailing American method of legislation, however, expects him to vote upon such things. In American legislatures, not only bills of this kind, but bills creating franchises for corporations, granting special privileges, establishing private interests, are introduced by the hundred and passed by the score, without advance publicity of any kind or a semblance of careful investigation. Is it extraordinary that, with their legislatures constantly occupying themselves with matters which are no part of the real business of the public, the public look elsewhere when seeking to have that business performed ? that they look to the governor and his advisers, rather than to the legislature itself; and look to him, not only to initiate needed general laws, but by his personal authority and his veto to dam the swelling flood of special and local bills as well ?
The constant complaint of the reformer is, that the people pay too little attention to the doings of the representatives who make the laws. Is it possible for the people of a state to follow, with interest or with profit, the work of a legislature occupied for the most part with bills of this kind ? Is it to be wondered at that the public recognizes its inability to focus its mind on these things, and turns the whole matter of legislation over to the supervision of the governor ? It has been said, not without a show of reason, that unless there be a return to the old principle of local self-government, the only practical alternative for the people is a benevolent despotism by the governor, — an elective despot.
Among the forgotten books of political philosophy, there is one which, perhaps more than any other, should be remembered in America — because it is the philosophy which stood at the beginning of the American Revolution; a philosophy, the attempt to apply which was one of the great causes of that Revolution. This book was Bolingbroke’s The Idea of a Patriot King. In that work, written at a time when parliamentary government was at its lowest ebb, and English politics a sink of corruption; when rotten boroughs flourished and the votes of unrepresentative representatives had to be bought on every important measure; Bolingbroke advocated the control of Parliament, and of the legislative affairs both of England and her colonies, by the strong hand of a patriot king. Bolingbroke believed that the vigorous use of the royal prerogative by a patriot king ruling with wisdom, and controlling by a strong hand Parliament and the affairs of the nation, would afford a practical solution for the evils created by a corrupt, inefficient, unrepresentative, and factional parliament. America did not accept this doctrine then. The idea of a patriot king collapsed under George III. His attempt to put this philosophy into effect was among the causes of the Revolution which separated us from Great Britain.
One of the great contributions of America to British freedom came through our refusal to accept this new political doctrine. The patriot-king theory disappeared in England after the Revolution. A cure for the conditions which the patriot king and his prerogative proposed to cure, was found in a reformed Parliament and a better system of representation. Those who seek a practical solution for our present legislative difficulties in an extraordinary increase of the influence of the executive over the affairs of the state and the nation, are offering us the patriot-king theory in a new form. If we do not really want it, we must recognize the reasons which give that theory an apparent justification in America to-day, and destroy the doctrine by destroying the causes which have brought it into existence.
Unconsciously, by instinct rather than by direct reasoning, the people are realizing that our law-making machinery has broken down; that, in their methods of legislation, our legislatures are to-day struggling with the impossible. The American voter realizes moreover the absolute impossibility that any average citizen who has any business of his own to attend to, can know anything about these special and local bills which, under prevalent crude and clumsy methods, clog the calendars of the legislatures. We realize that in our respective states the greater part of the time of our legislators is engrossed in mulling over these bills and passing them by the score, when on the final vote not one legislator in ten has any real understanding of either the propriety or the necessity of their enactment. We realize that the time misspent upon these measures is necessarily taken away from the consideration of general public acts dealing with the common interests of all of us; and that, because of this enormous volume of special legislation, the statute books tend to get filled with bad laws, bad because ill-considered and hastily passed, — because in this confused muddle of hasty law-making, the law-makers themselves lose the sense of responsibility. It is physically impossible for us to watch all these bills, or to watch the men who make a business of passing them. What are we to do ?
The answer which we make perhaps unconsciously is this : Let us put it all up to the governor or president. Let us elect a good governor. Let us elect a president we can trust, and turn over to him the whole business of managing this machinery of law-making in our behalf.
In this way and for this reason, consciously or unconsciously, we are remoulding our institutions. In spite of our American Constitution, in spite of our traditions of divided powers, we are to a large extent trying, in practice, the established English principle by which, as that best of foreign-born Americans, Mr. Bryce, puts it, “The Executive is primarily responsible for legislation and, to use a colloquial expression, ‘runs the whole show,’ — the selection of topics, the preparation of bills, their piloting and their passage through Parliament.” The English system recognizes no theoretical separation between executive and legislative functions. The Government is at once the source of the country’s general legislative plans, its law-maker, and its enforcer of law. We, in turn, are in practice tending toward a similar scheme of actual government. In practice, we have reversed the theoretical course of legislation. We expect the president and the governor to initiate legislation to meet general public requirements, and that those general public acts shall come, not from the legislature, but from the executive and his advisers. We expect in the enforcement of law, moreover, that the executive will ignore laws which are not fit to be enforced. We have adopted this plan because we realize that the thing which stands between us and legislative chaos is executive aggression. That which to-day protects us from legislatures as good as we deserve is an executive better than we deserve. We have asked for that executive aggression, and we cannot consistently complain when we get it. Until the method and scope of our legislation changes, we shall need it.
The condition which makes executive aggression has other phases not less important. Certain conservative minds are complaining, for example, of what is called “federal aggression.” With our state legislatures struggling with bills regulating the local affairs of cities and towns, there has been and can be no general progress toward uniformity of laws among the states, a uniformity absolutely necessary for the success of interstate business, which yearly increases enormously in volume. Because there is no progress toward uniformity of state law, the people are asking that the federal Constitution be stretched so that we may get that uniformity through national law. What hostile critics describe to-day as federal aggression is in a large measure the attempt by federal law to meet that demand for uniformity of law which the state legislatures have neglected and ignored.
The continuance of inefficient methods of law-making is moreover one of the most conspicuous sources of a certain lawlessness which, we can but admit, characterizes us as a people. In a country where laws are made on the wholesale plan by bad methods, in enormous quantities, in great haste, the respect of the people for law as law is bound to diminish and at times to disappear.
The same cause which tends to promote executive aggression tends moreover to make that aggression increase, rather than decrease, in scope and function, by making the individual legislator a cipher, by taking from his work dignity and importance, and thereby causing the office itself to be filled by third-rate men.
As I was conversing some time ago with two intelligent, well-educated voters, residents of a county adjoining the city of New York, one of them expressed regret at the failure of his party to reëlect a local assemblyman. To my suggestion that the man had proved himself stupid in office, and that his failure to be reelected was no great loss to the Assembly, they replied, “He knew enough to vote ‘Yes’ for what the governor wanted, and that was all he had to know.” That was what the office of assemblyman for their district meant to them.
This point of view has many adherents. The legislature tends to become a body whose functions, so far as the public generally is concerned, are to pass local bills, and on public measures to register the policies and legislative plans of the executive. To find intelligent and independent men who will care to accept legislative office under such conditions is growing harder each year, a fact which adds still more to the importance of the executive as the real source from which constructive legislation is to emanate.
The English Constitution, as some one has said, consists not of documents but of certain ideas on political principles shared by the vast majority of thinking Britons. On our own side of the water, we have written constitutions perfectly clear in their general scheme, which declare the separation of powers, executive, legislative, and judicial. But instead of this distribution being one of our fixed political ideas, there are now cross currents of conflicting opinions. Those who believe in practicing the theory of the Constitution at any cost to the country, are at war with those who believe in getting the right thing done at any cost to the theory and regardless of possible future consequences. The chief executives in the state and nation stand at a point where these cross currents meet. No more embarrassing position can be imagined than that of the president or governor who tries to keep a clear course between those who think that he should be nothing but a business manager, and those who insist that he should be the general executive officer and a working majority of the board of directors as well.
A still further embarrassment comes to him from the empirical standards of the press. Tor the newspapers, plainly reflecting public opinion, ally themselves at times with one school and at times with the other, and make the whole matter of executive conduct one, not of law, but of good taste. The newspaper which to-day scolds the President for refusing to usurp the function of Congress by practically repealing the Sherman law “until it is fit to be enforced,” presumably would see nothing illogical to-morrow in calling him an arrogant despot in case he should declare the Pure Food act, for example, unfit to be enforced, and should notify Congress that the law would remain a dead letter until a better one was enacted. Judged either by law or by logic, the executive aggression involved would be no greater in one case than in the other. The mere fact that one course of conduct would please the newspaper, and the other would not, is but a suggestion of a government by newspaper, — a different form of aggression, which, however, does not lack advocates.
Those who talk about executive aggression as though its origin were the mere itch for power of individuals placed in temporary positions of authority, would do well to study the real source of the tendency by which they are sometimes justly alarmed. Public opinion, tired of legislative inefficiency and irresponsibility, has developed a fancy for despotism in its demand upon the executive to get things done. Until we reform our methods of legislation, this seems likely to continue. So long as our present methods remain in vogue, executive interference in legislative matters bids fair to continue, not in defiance of public opinion, but with its very general assent, approval, and support.
There are those who desire a return to the theory of the Constitution, but who do not see that any appreciable progress can be made by mere general abuse of executive officers for so-called aggression, while ignoring the present reason and practical justification of that aggression. The return to the theory can be accomplished when common sense has been restored to the purposes and methods of legislation. When that has been done, executive usurpation will disappear. The public opinion which now supports and encourages it will then refuse even to tolerate it. The return to the Constitution, the old American theory of divided powers and duties, is desirable, but it can be accomplished in no other way; for we are a practical people, and if we are to have theories, we insist that they shall be theories which work.