|
|
| & etc |
FEEDBACK
(C)1998-2012
All Rights Reserved.
Site last updated
13 January, 2012
|
|
|
|
A Constitutional History of the United States
Chapter XVII - The Establishment of the Executive Departments and the Development of the Cabinet
by McLaughlin, Andrew C.
|
We must now briefly present the main facts and influences which produced
the president's cabinet. This body, though it is not provided for by the
Constitution, is now and has been almost from the beginning of the government a
conspicuous portion of the actual political system. For an understanding of its
rise, it is necessary to go back to the time of the Revolution and the old
Congress and also to see the experiences of the Confederate period, which gave
their lessons to the men of that generation. Even a brief examination of the
rise of the cabinet as an advisory council brings into view the very character
of the presidency, as the office and its duties emerged and as it took fairly
definite form and being in the early years.
During nearly the whole course of the Revolution, the general business
of the government had been carried on by committees and boards, or possibly one
might better say, not carried on. The clumsy and inefficient methods taught
their lesson, however; by 1781 Congress from its own ineptitude had learned
enough to provide for departments, each in charge of a single
officer.[1] The titles of these officials were Secretary for Foreign
Affairs,[2] Superintendent of Finance, Secretary at War, and
Secretary of Marine. The system suffered various lapses and modifications,
partly caused by the difficulty in getting suitable persons to accept or carry
on the offices. But, in an uncertain way, experience had proved the
desirability of individual responsibility in administrative work.
Robert Morris held the office of Superintendent of Finance from May,
1781 until November, 1784. About the time of Morris's retirement, John Jay
became Foreign Secretary and held the position until after the establishment of
the new government. Henry Knox, becoming Secretary at War in 1785, was also in
office when the Confederation expired. The services of Morris and especially of
Jay must have made fairly clear the idea of executive officers, with
administrative assistants, and with considerable independence in the ordinary
conduct of their duties.[3] When Washington assumed office there
were only two department heads holding positions inherited from the old regime
— Jay and Knox.
The Constitution contains no more than incidental references to
executive departments. The president is authorized to "require the opinion in
writing of the principal officer in each of the executive departments upon any
subject relating to the duties of their respective offices...." The other
reference is found in the clause granting Congress the power to vest the
appointment of inferior officers "in the President alone, in the courts of law,
or in the heads of departments."[4] It follows by necessary
implication that departments with a principal officer in each are contemplated
by the Constitution; but the number and duties of such departments are left to
the determination of Congress at its discretion.
The words of the Constitution and the experiences of the Confederation
were a sufficient guide to Congress. By acts passed in 1789, state, war, and
treasury departments, and the office of attorney-general [5] were
established. At the head of each department was a secretary. The departments of
state and war were called executive departments, and the secretaries were
directed to perform such duties as should be intrusted to them by the
president. The treasury was not called an executive department; the secretary,
it seems, was thought of as standing in a peculiar relationship to Congress; he
was to perform all such services relative to the finances as he should be
directed to perform, and he was to "make report and give information to either
branch of the Legislature, in person or in writing, (as he may be required,)
respecting all matters referred to him by the Senate or House of
Representatives, or which shall appertain to his office...." If it were
intended to place the treasury under the special guardianship of Congress, such
intention was doubtless due to the experience of colonial days. In the royal
and proprietary colonies, the executive and the legislative branches of the
legislature were not unlikely to be in opposition, or at least to have
different points of view, especially on fiscal matters; and little by little
the assemblies had gained a large degree of control over the colonial
treasuries.
The wording of the act establishing the treasury department indicates,
therefore, the possibility of the development of a system in which the
secretary would be very directly responsible to Congress or subject to some
sort of very immediate control. On the other hand — though this seems
rather fanciful — he might have become a minister directing or attempting
to direct the course of financial legislation. Had the early Congress summoned
the secretary or allowed him to appear in person, the intimacy between his
office and the legislature would, presumably, have been greater than any
association based on written reports. The first Secretary was eager enough to
lead; but he was not given the opportunity of advocating his measures on the
floor. He appears at times to have looked upon his office as that of minister
extraordinary, and he had great influence on the development of the executive
power; in the early years he shaped in considerable measure the financial
policy of Congress. We are not dealing with mere shadows when we contemplate
the possibility of the establishment of practices, growing out of the intimacy
between Congress and the treasury, which would have affected the strength and
character of the presidency; a divided or far from unified executive might have
been the result.[6]
Hamilton and Jefferson, the two leading men among Washington's advisers,
deserve special attention. Around them and their opinions gathers in
considerable measure the constitutional and political history of the last
decade of the century. They also represent with very peculiar distinctness
certain differences of mind and underlying principles of action — such
attitudes and tendencies, be they of one kind or the other, as commonly affect
men and women in their political and social relations. Of Hamilton something
has already been said in these pages. At the time of life when most boys are
engaged in the aimless frivolities of adolescence, Hamilton was deeply
interested in the cause of the Revolution. He was a man of very marked mental
gifts, an able lawyer, with a decided capacity for financial affairs. He was
indefatigable and earnest, striking direct and unerring blows, leading his
followers with no apparent misgivings and with no doubt of the validity of his
considered opinions. For years he had been deeply concerned by the distress and
the inefficiency of the Confederation; his anxiety was caused by a native
dislike for confusion and a native talent for system, and withal he belonged to
that small body of wide-visioned men whose country was America and who did not
enshroud themselves in the clouds of petty local politics. He was a
continentalist, a nationalist, by temperament and by training. In some ways he
was a natural leader, but, though not without a degree of personal charm, there
was within him a certain headstrong determination, a product, it may be, of his
own logical talent. His assurance and the very qualities of his genius appear
to have made him incapable of wide and appealing popular leadership. As so
often happens in human life, his strength was his weakness.
Of Jefferson, too, only a word can be said, though many words would be
insufficient because his character was so complex and his interests so varied.
Primarily he was not of the administrative temper; a learned lawyer and a
practical politician, he was fundamentally a philosopher. He, too, was
profoundly interested in the success of America, but he did not see success in
a smoothly-working governmental system or in administrative devices; he had
come to distrust governmental machinery and to place his confidence in the
primary impulses of his fellow men. This confidence, it may be the part of
caution to say, was a part, the creative part, of his philosophy; but in
practice he was at times not confiding, but suspicious; his philosophy taught
him confidence in man; his experience or, it may be, a sensitive temperament,
sometimes made him suspicious of men, the actual men of affairs with whom he
had to deal. Though reared in the solitudes of Virginia, he was, after some
years of residence at Paris, a man of the world. He had given his mind to the
study of human affairs, not so much to the science of orderly and stable
government, as to the science or philosophy of human well-being. Conditions in
Europe shocked and antagonized him. In the early days of the Revolution he had
arrayed himself with a radical anti-British element, and in the years before he
went to France he had been engaged in the task of freeing Virginia from the
hold of the big plantation owners. To class him with Clinton or any of the
other localists, whose minds were glued to immediate interests and who were
incapable of seeing beyond state limits, is a radical blunder; what he feared
was the establishment in America of a burdensome, expensive, overhead
government, aping, in its manners and in its attitude toward the common man,
the governments of Europe, against whose impositions his whole nature and its
accordant philosophy were arrayed. His thinking was national — or
international — rather than provincial; but because he had no liking for
elaborate legalism, he failed at times to see with proper clarity that the very
success of popular government depended upon the stability of the American
union.
Comparisons are odious; and they may be especially so when great men are
compared. Hamilton and Jefferson were, by any standards, great men. The country
needed both of them. It needed Hamilton's talent for organization, his
conception of national authority and of efficiency. It needed Jefferson and his
sympathy for the genius of the young, fresh country just breaking away from the
bonds of colonialism and entering upon the perils and trials of democratic
government. It needed Hamilton's administrative skill and his fervid
nationalism; it also needed Jefferson's vision, his comprehension of the needs
and the aspirations of the common folks, the farmers, the plain people, who
never to the end lost confidence in him because he continued confident of them.
We cannot see how America could have become the America we know without both of
them. One can scarcely overemphasize the influence of Hamilton in the
establishment of the governmental system. Jefferson — or Jeffersonism
— embodied the hopeful and adventurous America which was coming into
existence and gaining a consciousness of itself.
So far we have been concerned with the organization of executive
departments distinctly provided for by the Constitution. A consideration of the
origin and development of the cabinet as we know it to-day must now command our
attention. In the Constitutional Convention there had been considerable
discussion about the desirability of a council of revision, a privy council, a
council of state — some advisory body to act with the
president.[7] Such plans were natural accompaniments of an
unwillingness to establish an executive free from oversight and dangerously
competent. The institutions of the colonies, the provisions of some of the
state constitutions, and perhaps also the royal council of Britain, probably
influenced those members of the Convention who desired a check upon
presidential power. The Senate, because of its share in appointments and in the
making of treaties, constituted to some extent a check on the executive and
was, probably, especially in treaty-making, supposed to furnish advice and
consent. But nothing that we may term a cabinet council was provided for in the
Constitution. From actual conditions, therefore, and from the practical
necessities of the case as problems of government presented themselves, the
cabinet came into existence.
The cabinet is a well-known political institution in America; or, to
speak more correctly, the term is one in common use. If we mean by the word
"cabinet" a council or advisory body — and that is the ordinary
connotation — the institution is entirely unknown to formal law, either to
constitutional or statute law; it is a product of history, a part of our
unwritten constitutional system. The term "cabinet" in a congressional
enactment first appeared in 1907; [8] but the word was then used
almost incidentally and cannot be considered as indicating the intention to
establish the cabinet as a body — in any technical sense a legal
institution.[9] Concerning some of its customary characteristics,
one has to speak with caution. It is to-day made up of the heads of the various
executive departments; it meets frequently and discusses matters of general
interest and policy. Its conclusions, if it reaches any, are not binding upon
the president; he is not under any legal necessity of calling the members
together or of asking their opinions; but the habit of group consultation is an
established habit, and a president neglecting consultation and acting quite
without advice would be considered as violating tradition, possibly one should
say good manners. No one would venture to say that there must be unanimity of
opinion; but there is a certain or uncertain degree of general loyalty to the
purposes of the president; there is a distinct or nebulous administrative
policy or tendency which no member is expected openly to flout. The members are
the president's appointees and are naturally expected to work harmoniously with
him. A cabinet officer can, of course, in the seclusion of the cabinet
meetings, express his opposition to a proposed line of conduct; but public
opposition, even if it should have no serious consequences, is looked upon with
disfavor. If he finds himself in substantial disagreement with the president
and has conscientious objections to the presidential policy, he is expected to
retire from office. The essential unity of the executive forces must be
maintained. Congress cannot by legislation place any official in the cabinet,
though when a department is created the secretary is by tradition and custom a
member of the body;[10] the president can do without cabinet
meetings, refuse to summon some secretaries, invite the vice-president to
participate, in short, legally speaking, do as he thinks best.
The fact of meeting, the giving of advice and the interchange of
opinions, though these things are important, are not the matters of most
consequence. The most significant thing is the most intangible — the
expression of the vague and indefinable need of administrative or executive
coherence. This need, as we shall see in a moment, came clearly, though
gradually, to view in the course of the first twelve years; when we enter upon
Jefferson's administration we find ourselves in the presence of a body of men
with similar views and enthusiasms, not merely a number of executive officers,
but a body of councilors with a common loyalty. This, of course, could not have
come to very full realization until there were policies calling for executive
judgment and discretion, marking off one set of men from another, until, in
other words, there were parties, even if the parties were not fully equipped
with all the paraphernalia and common loyalties of the modern party system.
Washington, it is sometimes said, strangely appointed to his cabinet two
men, Jefferson and Hamilton, representing different parties — an
unfortunate statement, for at the beginning there was no cabinet and there were
no parties, at least no parties fully-organized and recognized. The President
could have had no idea that he was to have a cabinet. In his administrations
both of these institutions began to take form, both of them the product of the
new tasks and the new opportunities of popular government. Theoretically, the
heads of the various departments, though subject to the President's orders,
could have gone along independently and separately; theoretically, too, the new
government could have operated without parties; as a matter of fact, the men
making the Constitution were apparently ignorant of the party as we now use the
term. But as issues arose, as violent differences of opinion developed, as the
possibilities of popular contention — the garrulous companion of
democratic government — came upon the scene, the need of something like
unity in the executive came to light. On the surface, heads of the departments
were executive officers, and only executive officers, with the duty of giving
separate advice or information when it was called for; but the President needed
counsel and he needed support; he needed it more than he did the haggling and
disputatious argument of men whom he called together for advice.
We must not suppose that at the beginning Washington thought of the
chief executive officers as his sole advisers; much less did he consider them
as a council with fairly consistent or tangible policies. In the very early
years of his presidency he consulted various people, some of them not in
executive office. In 1790, he asked for written opinions not only from the
three secretaries but also from John Adams and John Jay — the
Vice-President and the Chief Justice. Thereafter he occasionally asked Adams
for written advice.[11] He even asked Madison to prepare for him a
veto of the bank bill (1791), which he might use if he decided against the
measure. The President naturally needed expert assistance in solving difficult
questions of constitutional construction. Concerning problems of foreign
affairs, over which the Constitution gave him great authority, there was
abundant opportunity for differences of opinion, and there was need of deciding
upon a policy, even the need of deciding upon the extent and character of the
President's power. It was necessary to take affirmative action and not merely
to carry out legislative orders. Amid the perplexities arising from the French
treaties in 1793, Washington requested the federal judges to give their
opinions on the legal problems involved. The judges, however, declined to
answer the questions propounded.
During the absence of the President from the seat of government there
was special need of interchange of opinions among members of what we now call
the "administration". Accordingly we find Washington writing (April 4, 1791) to
the secretaries — the Attorney-General not being mentioned — asking
them to consult together upon any serious and important cases that might arise,
and to determine whether his own presence was necessary. He suggested the
advisability of calling upon Adams to participate in the consultation, if Adams
had not left the seat of government. The three secretaries and the
Vice-President met and discussed various matters. Jefferson sent a report to
Washington.[12] This was the beginning, as far as we know, and the
first of what before long were called cabinet meetings.
In the next year (1792) there were other meetings. Of one, Jefferson
says: "Mar. 31. A meeting at the P's, present Th: J., A.H., H.K. & E.R. The
subject was the resoln of the H. of Repr. of Mar. 27. to appt a commee to
inquire into the causes of the failure of the late expdn under Maj. Genl. St.
Clair...." In 1793, consultations were sufficiently frequent to justify us in
saying that the habit had been established. For another year or two the opinion
of the Vice-President was occasionally asked, but the cabinet normally
consisted of the secretaries and the Attorney-General. In 1793 the word
"cabinet" began to be used with more or less frequency.
Harmony and a common understanding among the members of the cabinet did
not prevail. The differences between Hamilton and Jefferson developed into
animosities. The latter surrendered his office at the end of 1793. Hamilton and
Knox remained about a year longer. Thereafter there appears to have been
comparative peace, though Randolph, who had become Secretary of State, made his
contributions to the President's vexations and anxieties. After his
disappearance from the scene (1795), there was no occasion for much unbecoming
quarreling or clandestine intrigue. Washington wrote (September 27, 1795): "I
shall not, whilst I have the honor to administer the government, bring a man
into any office of consequence knowingly, whose political tenets are adverse to
the measures, which the general government are pursuing; for this, in my
opinion, would be a sort of political suicide."
This pronouncement is often taken as a declaration of Washington's
recognition of parties and even of his conscious affiliation with the
Federalists. That may be so; but the conclusion must be reached only with
suspicion of its correctness. Certainly, however, he had come to see that a
reasonable degree of harmony and common purpose among his chief advisers was a
necessity. After his experiences with Randolph, the need of having men in the
principal offices who would support and not mangle his policies is to us so
plain that there is no necessity of accounting for his sentiment by attributing
it to party devotion or to a newly-awakened belief in the party system. The
time had come when the presidential office must be considered to have a policy
which it must attempt to follow consistently as issues arose. In carrying out
that policy, the president must be able to rely on the loyalty and the
intelligent coöperation of those with whom he consulted and who had the
duty of carrying out the policies determined upon. Washington's tolerance of
varying opinion and his desire to call into requisition the intelligence of
others were characteristic of him. And probably tolerance was safer in those
early days than any set determination to have no one about him but those in all
respects determined to see only one side of every question; but the executive,
a unified executive, was at all events taking shape, created by the compelling
necessities of the case. The disturbances in Adams's cabinet and the need, once
more displayed, of coherence and essential harmony, it is not necessary to
dwell upon here. Those conditions brought forth again the fact that the
president must have about him men in personal sympathy with him and his
policies and ready to carry his program faithfully into operation.
[1] Secretary for Foreign Affairs, January 10, 1781;
Superintendent of Finance, Secretary at War, and Secretary of Marine, February
7, 1781. Journals of Congress (1823 ed.), III, pp. 564, 575. The marine
department did not last long, its duties being turned over to the
Superintendent of Finance. Ibid., III, p. 665. "It is positively
pathetic to follow Congress through its aimless wanderings in search of a
system for the satisfactory management of its executive departments. At no
period between 1774 and 1781 can we find it pursuing any consistent line of
action with reference to them. A humble committee served as the common origin
of all. With the exception of the Committee of Foreign Affairs, they developed
independently into boards, and afterwards each was tossed about and tinkered at
different times and under different circumstances." J. C. Guggenheimer, "The
Development of the Executive Departments, 1775-1789," Essays in the
Constitutional History of the United States (J. F. Jameson, ed.), p.
148.
[2] Changed in 1782 to Secretary to the United States of
America for the Department of Foreign Affairs. H. B. Learned, The
President's Cabinet, pp. 53-54.
[3] See Ibid., p. 59.
[4] Reference may also be made to the Constitution, Art. I,
sec. 8, para. 18.
[5] The attorney-general was considered a member of the
cabinet when it got well under way; but not before 1870 did he become the head
of the department of justice. The post office went on at first on about the
same basis as under the Confederation. Samuel Osgood was appointed
Postmaster-General in 1789 and the office was more fully provided for in 1794.
The postmaster-general was not at first admitted as a regular member of the
cabinet; the department was not explicitly called an executive department until
1874.
[6] Learned points out that there are three underlying
principles of the American presidency: (1) unity in the executive power; (2)
responsibility to the people for the execution of the law; (3) discretionary
power in the president to direct and remove his assistants. Learned, op.
cit., p. 379. Each one of these is in some measure the result of developing
practices. The second obtained its special significance forty years and more
after the Constitution was adopted. The third, now generally accepted, was not
established without some verbal turmoil. The three are mutually or reciprocally
supporting.
[7] See especially the discussion on September 7, 1787, and
the approval of the provision to give the president authority to call for the
opinions of the heads of departments.
[8] Learned, op. cit., p. 157.
[9] It may be questioned whether Congress could establish a
cabinet by law.
[10] The postmaster-general was first made a cabinet member
by Jackson (1829).
[11] Learned, op. cit., pp. 120-121. Learned's
accumulation of evidence on the early growth of the cabinet is particularly
helpful. See ch. V. See also M. L. Hinsdale, A History of the President's
Cabinet. It is noteworthy that when Jefferson became Vice-President he
declared privately that he considered his office "as constitutionally confined
to legislative functions" and that he could not take part "in executive
consultations, even were it proposed...." Letter from Jefferson to Elbridge
Gerry, May 13, 1797. See Jefferson, Works (federal ed.), VIII, p.
284.
[12] See Jefferson, Works (federal ed.), VI, p. 243
ff.
|
|
| |
