4: A Constitutional Crisis
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A Constitutional Crisis
As soon as Cleveland was seated in the presidential chair, he had
to deal with a tremendous onslaught of office seekers. In
ordinary business affairs, a man responsible for general policy
and management would never be expected to fritter away his time
and strength in receiving applicants for employment. The fact
that such servitude is imposed upon the President of the United
States shows that American political arrangements are still
rather barbaric, for such usages are more suitable to some
kinglet seated under a tree to receive the petitions of his
tribesmen than they are to a republican magistrate charged with
the welfare of millions of people distributed over a vast
continent. Office seekers apparently regard themselves as a
privileged class with a right of personal access to the
President, and any appearances of aloofness or reserve on his
part gives sharp offense. The exceptional force of such claims of
privilege in the United States may be attributed to the
participation which members of Congress have acquired in the
appointing power. The system thus created imposes upon the
President the duties of an employment agent, and at the same time
engages Congressmen in continual occupation as office brokers.
The President cannot deny himself to Congressmen, since he is
dependent upon their favor for opportunity to get legislative
consideration for his measures.
It was inevitable that numerous changes in office should take
place when the Democratic party came into power, after being
excluded for twenty-four years. It may be admitted that, in a
sound constitutional system, a change of management in the public
business would not vacate all offices any more than in private
business, but would affect only such leading positions as are
responsible for policy and discipline. Such a sensible system,
however, had existed only in the early days of the republic and
at the time of Cleveland's accession to office federal offices
were generally used as party barracks. The situation which
confronted President Cleveland he thus described in later years:
"In numerous instances the post-offices were made headquarters
for local party committees and organizations and the centers of
partisan scheming. Party literature favorable to the postmaster's
party, that never passed regularly through the mails, was
distributed through the post-offices as an item of party service;
and matter of a political character, passing through the mails in
the usual course and addressed to patrons belonging to the
opposite party, was withheld; disgusting and irritating placards
were prominently displayed in many post-offices, and the
attention of Democratic inquirers for mail matter was tauntingly
directed to them by the postmaster; and in various other ways
postmasters and similar officials annoyed and vexed those holding
opposite political opinions, who, in common with all having
business at public offices, were entitled to considerate and
obliging treatment. In some quarters, official incumbents
neglected public duty to do political work and especially in
Southern States, they frequently were not only inordinately
active in questionable political work, but sought to do party
service by secret and sinister manipulation of colored votes, and
by other practices inviting avoidable and dangerous collisions
between the white and colored population."(1)
(1)Cleveland, Presidential Problems, pp. 42-43.
The Administration began its career in March, 1885. The Senate
did not convene until December. Meanwhile, removals and
appointments went on in the public service, the total for ten
months being six hundred and forty-three which was thirty-seven
less than the number of removals made by President Grant in seven
weeks, in 1869.
In obedience to the statute of 1869, President Cleveland sent in
all the recess appointments within thirty days after the opening
of the session. They were referred to various committees
according to the long established custom of the Senate, but the
Senate moved so slowly that three months after the opening of the
session, only seventeen nominations had been considered, fifteen
of which the Senate confirmed.
Meanwhile, the Senate had raised an issue which the President met
with a force and a directness probably unexpected. Among the
recess appointments was one to the office of District Attorney
for the Southern District of Alabama, in place of an officer who
had been suspended in July 1885, but whose term of office
expired by limitation on December 20, 1885. Therefore, at the
time the Senate took up the case, the Tenure of Office Act did
not apply to it, and the only question actually open was whether
the acting officer should be confirmed or rejected. Nevertheless,
the disposition to assert control over executive action was so
strong that the Senate drifted into a constitutional struggle
over a case that did not then involve the question of the
President's discretionary power of removal from office, which was
really the point at issue.
On December 26, 1885, the Judiciary Committee notified the
Attorney-General to transmit "all papers and information in the
possession of the Department" regarding both the nomination and
"the suspension and proposed removal from office" of the former
incumbent. On January 11, 1886, the Attorney-General sent to the
Committee the papers bearing upon the nomination, but withheld
those touching the removal on the ground that he had "received
no direction from the President in relation to their
transmission." The matter was debated by the Senate in executive
session and on January 25, 1886, a resolution was adopted which
was authoritative in its tone and which directed the
Attorney-General to transmit copies of all documents and papers
in relation to the conduct of the office of District Attorney for
the Southern District of Alabama since January 1, 1885. Within
three days, Attorney-General Garland responded that he had
already transmitted all papers relating to the nomination; but
with regard to the demand for papers exclusively relating to the
suspension of the former incumbent he was directed by the
President to say "that it is not considered that the public
interests will be promoted by a compliance."
The response of the Attorney-General was referred to the
Judiciary Committee which, on the 18th of February, made an
elaborate report exhibiting the issue as one which involved the
right of Congress to obtain information. It urged that "the
important question, then, is whether it is within the
constitutional competence of either House of Congress to have
access to the official papers and documents in the various public
offices of the United States, created by laws enacted by
themselves." The report, which was signed only by the Republican
members of the Committee, was an adroit partisan performance,
invoking traditional constitutional principles in behalf of
congressional privilege. A distinct and emphatic assertion of the
prerogative of the Senate was made, however, in resolutions
recommended to the Senate for adoption. Those resolutions
censured the Attorney-General and declared it to be the duty of
the Senate "to refuse its advice and consent to proposed removals
of officers" when papers relating to them "are withheld by the
Executive or any head of a department."
On the 2nd of March, a minority report was submitted, making the
point of which the cogency was obvious, that inasmuch as the
term of the official concerning whose suspension the Senate
undertook to inquire had already expired by legal limitation, the
only object in pressing for the papers in his case must be to
review an act of the President which was no longer within the
jurisdiction of the Senate, even if the constitutionality of the
Tenure of Office Act should be granted. The report also showed
that of the precedents cited in behalf of the majority's
contention, the applicability could be maintained only of those
which were supplied by cases arising since 1867, before which
time the right of the President to remove officers at his own
discretion was fully conceded.
The controversy had so far followed the ordinary lines of
partisan contention in Congress, which public opinion was
accustomed to regard with contemptuous indifference as mere
sparring for points in the electioneering game. President
Cleveland now intervened in a way which riveted the attention of
the nation upon the issue. Ever since the memorable struggle
which began when the Senate censured President Jackson and did
not end until that censure was expunged, the Senate had been
chary of a direct encounter with the President. Although the
response of the Attorney-General stated that he was acting under
the direction of the President, the pending resolutions avoided
any mention of the President but expressed "condemnation of the
refusal of the Attorney-General under whatever influence, to send
to the Senate" the required papers. The logical implication was
that, when the orders of the President and the Senate conflicted,
it was the duty of the Attorney-General to obey the Senate. This
raised an issue which President Cleveland met by sending to the
Senate his message of March 1, 1886, which has taken a high rank
among American constitutional documents. It is strong in its
logic, dignified in its tone, terse, direct, and forceful in its
diction.
Cleveland's message opened with the statement that "ever since
the beginning of the present session of the Senate, the different
heads of the departments attached to the executive branch of the
government have been plied with various requests and documents
from committees of the Senate, from members of such committees,
and at last from the Senate itself, requiring the transmission of
reasons for the suspension of certain officials during the recess
of that body, or for papers touching the conduct of such
officials." The President then observed that "though these
suspensions are my executive acts, based upon considerations
addressed to me alone and for which I am wholly responsible, I
have had no invitation from the Senate to state the position
which I have felt constrained to assume." Further on, he clinched
this admission of full responsibility by declaring that "the
letter of the Attorney-General in response to the resolution of
the Senate... was written at my suggestion and by my direction."
This statement made clear in the sight of the nation that the
true issue was between the President and the Senate. The strength
of the Senate's position lay in its claim to the right of access
to the records of public offices "created by laws enacted by
themselves." The counterstroke of the President was one of the
most effective passages of his message in its effect upon public
opinion. "I do not suppose," he said, "that the public offices of
the United States are regulated or controlled in their relations
to either House of Congress by the fact that they were 'created
by laws enacted by themselves.' It must be that these
instrumentalities were enacted for the benefit of the people and
to answer the general purposes of government under the
Constitution and the laws, and that they are unencumbered by any
lien in favor of either branch of Congress growing out of their
construction, and unembarrassed by any obligation to the Senate
as the price of their creation."
The President asserted that, as a matter of fact, no official
papers on file in the departments had been withheld. "While it is
by no means conceded that the Senate has the right, in any case,
to review the act of the Executive in removing or suspending a
public officer upon official documents or otherwise, it is
considered that documents and papers of that nature should,
because they are official, be freely transmitted to the Senate
upon its demand, trusting the use of the same, for proper and
legitimate purposes, to the good faith of that body; and though
no such paper or document has been especially demanded in any of
the numerous requests and demands made upon the departments, yet
as often as they were found in the public offices they have been
furnished in answer to such applications." The point made by the
President, with sharp emphasis, was that there was nothing in his
action which could be construed as a refusal of access to
official records; what he did refuse to acknowledge was the right
of the Senate to inquire into his motives and to exact from him a
disclosure of the facts, circumstances, and sources of
information that prompted his action. The materials upon which
his judgment was formed were of a varied character. "They consist
of letters and representations addressed to the Executive or
intended for his inspection; they are voluntarily written and
presented by private citizens who are not in the least instigated
thereto by any official invitation or at all subject to official
control. While some of them are entitled to Executive
consideration, many of them are so irrelevant or in the light of
other facts so worthless, that they have not been given the least
weight in determining the question to which they are supposed to
relate." If such matter were to be considered public records and
subject to the inspection of the Senate, the President would
thereby incur "the risk of being charged with making a suspension
from office upon evidence which was not even considered."
Issue as to the status of such documents was joined by the
President in the sharpest possible way by the declaration: "I
consider them in no proper sense as upon the files of the
department but as deposited there for my convenience, remaining
still completely under my control. I suppose if I desired to take
them into my custody I might do so with entire propriety, and if
I saw fit to destroy them no one could complain."
Moreover, there were cases in which action was prompted by oral
communications which did not go on record in any form. As to
this, Cleveland observed, "It will not be denied, I suppose, that
the President may suspend a public officer in the entire absence
of any papers or documents to aid his official judgment and
discretion; and I am quite prepared to avow that the cases are
not few in which suspensions from office have depended more upon
oral representations made to me by citizens of known good repute
and by members of the House of Representatives and Senators of
the United States than upon any letters and documents presented
for my examination." Nor were such representations confined to
members of his own party for, said he, "I recall a few
suspensions which bear the approval of individual members
identified politically with the majority in the Senate." The
message then reviewed the legislative history of the Tenure of
Office Act and questioned its constitutionality. The position
which the President had taken and would maintain was exactly
defined by this vigorous statement in his message:
"The requests and demands which by the score have for nearly
three months been presented to the different Departments of the
government, whatever may be their form, have but one complexion.
They assume the right of the Senate to sit in judgement upon the
exercise of my exclusive discretion and executive function, for
which I am solely responsible to the people from whom I have so
lately received the sacred trust of office. My oath to support
and defend the Constitution, my duty to the people who have
chosen me to execute the powers of their great office and not
relinquish them, and my duty to the chief magistracy which I must
preserve unimpaired in all its dignity and vigor, compel me to
refuse compliance with these demands."
There is a ringing quality in the style of this message not
generally characteristic of President Cleveland's state papers.
It evoked as ringing a response from public opinion, and this
effect was heightened by a tactless allusion to the message made
at this time in the Senate. In moving a reference of the message
to the Judiciary Committee, its chairman, Senator Edmunds of
Vermont, remarked that the presidential message brought vividly
to his mind "the communication of King Charles I to the
Parliament, telling them what, in conducting their affairs, they
ought to do and ought not to do." The historical reference,
however, had an application which Senator Edmunds did not
foresee. It brought vividly to mind what the people of England
had endured from a factional tyranny so relentless that the
nation was delighted when Oliver Cromwell turned Parliament out
of doors. It is an interesting coincidence that the Cleveland era
was marked by what in the book trade was known as the Cromwell
boom. Another unfortunate remark made by Senator Edmunds was that
it was the first time "that any President of the United States
has undertaken to interfere with the deliberations of either
House of Congress on questions pending before them, otherwise
than by message on the state of the Union which the Constitution
commands him to make from time to time." The effect of this
statement, however, was to stir up recollections of President
Jackson's message of protest against the censure of the Senate.
The principle laid down by Jackson in his message of April 15,
1834, was that "the President is the direct representative of the
American people," whereas the Senate is "a body not directly
amenable to the people." However assailable this statement may be
from the standpoint of traditional legal theory, it is
indubitably the principle to which American politics conform in
practice. The people instinctively expect the President to guard
their interests against congressional machinations.
There was a prevalent belief that the Senate's profession of
motives, of constitutional propriety, was insincere and that the
position it had assumed would never have been thought of had the
Republican candidate for President been elected. A feeling that
the Senate was not playing the game fairly to refuse the
Democrats their innings was felt even among Senator Edmunds' own
adherents. A spirit of comity traversing party lines is very
noticeable in the intercourse of professional politicians. Their
willingness to help each other out is often manifested,
particularly in struggles involving control of party machinery.
Indeed, a system of ring rule in a governing party seems to have
for its natural concomitant the formation of a similar ring in
the regular opposition, and the two rings maintain friendly
relations behind the forms of party antagonism. The situation is
very similar to that which exists between opposing counsel in
suits at law, where the contentions at the trial table may seem
to be full of animosity and may indeed at times really develop
personal enmity, but which as a general rule are merely for
effect and do not at all hinder cooperation in matters pertaining
to their common professional interest.
The attitude taken by the Senate in its opposition to President
Cleveland jarred upon this sense of professional comity, and it
was very noticeable that in the midst of the struggle some
questionable nominations of notorious machine politicians were
confirmed by the Senate. It may have been that a desire to
discredit the reform professions of the Administration
contributed to this result, but the effect was disadvantageous to
the Senate. The Nation on March 11, 1886, in a powerful article
reviewing the controversy observed: "There is not the smallest
reason for believing that, if the Senate won, it would use its
victory in any way for the maintenance or promotion of reform. In
truth, in the very midst of the controversy, it confirmed the
nomination of one of Baltimore's political scamps." It is
certainly true that the advising power of the Senate has never
exerted a corrective influence upon appointments to office; its
constant tendency is towards a system of apportionment which
concedes the right of the President to certain personal
appointments and asserts the reciprocal right of Congressmen to
their individual quotas.
As a result of these various influences, the position assumed by
the Republicans under the lead of Senator Edmunds was seriously
weakened. When the resolutions of censure were put to the vote on
the 26th of March, that condemning the refusal of the
Attorney-General to produce the papers was adopted by thirty-two
ayes to twenty-six nays—a strict party vote; but the resolution
declaring it to be the duty of the Senate in all such cases to
refuse its consent to removals of suspended officials was adopted
by a majority of only one vote, and two Republican Senators voted
with the Democrats. The result was, in effect, a defeat for the
Republican leaders, and they wisely decided to withdraw from the
position which they had been holding. Shortly after the passage
of the resolutions, the Senate confirmed the nomination over
which the contest started, and thereafter the right of the
President to make removals at his own discretion was not
questioned.
This retreat of the Republican leaders was accompanied, however,
by a new development in political tactics, which from the
standpoint of party advantage, was ingeniously conceived. It was
now held that, inasmuch as the President had avowed attachment to
the principle of tenure of office during good behavior, his
action in suspending officers therefore implied delinquency in
their character or conduct from which they should be exonerated
in case the removal was really on partisan grounds. In reporting
upon nominations, therefore, Senate committees adopted the
practice of noting that there were no charges of misconduct
against the previous incumbents and that the suspension was on
account of "political reasons." As these proceedings took place
in executive session, which is held behind closed doors, reports
of this character would not ordinarily reach the public, but the
Senate now voted to remove the injunction of secrecy, and the
reports were published. The manifest object of these maneuvers
was to exhibit the President as acting upon the "spoils system"
of distributing offices. The President's position was that he was
not accountable to the Senate in such matters. In his message of
the 1st of March he said: "The pledges I have made were made to
the people, and to them I am responsible for the manner in which
they have been redeemed. I am not responsible to the Senate, and
I am unwilling to submit my actions and official conduct to them
for judgement."
While this contest was still going on, President Cleveland had to
encounter another attempt of the Senate to take his authority out
of his hands. The history of American diplomacy during this
period belongs to another volume in this series,(1) but a
diplomatic question was drawn into the struggle between the
President and the Senate in such a way that it requires mention
here. Shortly after President Cleveland took office, the fishery
articles of the Treaty of Washington had terminated. In his first
annual message to Congress, on December 8, 1885, he recommended
the appointment of a commission to settle with a similar
commission from Great Britain "the entire question of the fishery
rights of the two governments and their respective citizens on
the coasts of the United States and British North America." But
this sensible advice was denounced as weak and cowardly. Oratory
of the kind known as "twisting the lion's tail" resounded in
Congress. Claims were made of natural right to the use of
Canadian waters which would not have been indulged for a moment
in respect of the territorial waters of the United States. For
instance, it was held that a bay over six miles between headlands
gave free ingress so long as vessels kept three miles from shore
—a doctrine which, if applied to Long Island Sound, Delaware
Bay, or Chesapeake Bay, would have impaired our national
jurisdiction over those waters. Senator Frye of Maine took the
lead in a rub-a-dub agitation in the presence of which some
Democratic Senators showed marked timidity. The administration of
public services by congressional committees has the incurable
defect that it reflects the particular interests and attachments
of the committeemen. Presidential administration is so
circumstanced that it tends to be nationally minded; committee
administration, just as naturally, tends to be locally minded.
Hence, Senator Frye was able to report from the committee on
foreign relations a resolution declaring that a commission
"charged with the consideration and settlement of the fishery
rights... ought not to be provided for by Congress." Such was the
attitude of the Senate towards the President on this question,
that on April 13, 1886, this arrogant resolution was adopted by
thirty-five ayes to 10 nays. A group of Eastern Democrats who
were in a position to be affected by the longshore vote, joined
with the Republicans in voting for the resolution, and among them
Senator Gorman of Maryland, national chairman of the Democratic
party.
President Cleveland was no more affected by this Senate
resolution than he had been by their other resolutions attacking
his authority. He went ahead with his negotiations and concluded
treaty arrangements which the Senate, of course, rejected; but,
as that result had been anticipated, a modus vivendi which had
been arranged by executive agreements between the two countries
went into effect, regardless of the Senate's attitude. The case
is a signal instance of the substitution of executive
arrangements for treaty engagements which has since then been
such a marked tendency in the conduct of the foreign relations of
the United States.
A consideration which worked steadily against the Senate in its
attacks upon the President, was the prevalent belief that the
Tenure of Office Act was unconstitutional in its nature and
mischievous in its effects. Although Senator Edmunds had been
able to obtain a show of solid party support, it eventually
became known that he stood almost alone in the Judiciary
Committee in his approval of that act. The case is an instructive
revelation of the arbitrary power conferred by the committee
system. Members are loath to antagonize a party chairman to whom
their own bills must go for approval. Finally, Senator Hoar dared
to take the risk, and with such success that on June 21, 1886,
the committee reported a bill for the complete repeal of the
Tenure of Office Act, the chairman—Senator Edmunds—alone
dissenting. When the bill was taken up for consideration, Senator
Hoar remarked that he did not believe there were five members of
the Senate who really believed in the propriety of that act. "It
did not seem to me to be quite becoming," he explained, "to ask
the Senate to deal with this general question, while the question
which arose between the President and the Senate as to the
interpretation and administration of the existing law was
pending. I thought, as a party man, that I had hardly the right
to interfere with the matter which was under the special charge
of my honorable friend from Vermont, by challenging a debate upon
the general subject from a different point of view."
Although delicately put, this statement was in effect a
repudiation of the party leadership of Edmunds and in the debate
which ensued, not a single Senator came to his support. He stood
alone in upholding the propriety of the Tenure of Office Act,
arguing that without its restraint "the whole real power and
patronage of this government was vested solely in the hands of a
President of the United States and his will was the law." He held
that the consent of the Senate to appointments was an
insufficient check if the President were allowed to remove at his
own will and pleasure. He was answered by his own party
colleagues and committee associates, Hoar and Evarts. Senator
Hoar went so far as to say that in his opinion there was not a
single person in this country, in Congress or out of Congress,
with the exception of the Senator from Vermont, who did not
believe that a necessary step towards reform "must be to impose
the responsibility of the Civil Service upon the Executive."
Senator Evarts argued that the existing law was incompatible with
executive responsibility, for "it placed the Executive power in a
strait-jacket." He then pointed out that the President had not
the legal right to remove a member of his own Cabinet and asked,
"Is not the President imprisoned if his Cabinet are to be his
masters by the will of the Senate?" The debate was almost wholly
confined to the Republican side of the Senate, for only one
Democrat took any part in it. Senator Edmunds was the sole
spokesman on his side, but he fought hard against defeat and
delivered several elaborate arguments of the "check and balance"
type. When the final vote took place, only three Republicans
actually voted for the repealing bill, but there were absentees
whose votes would have been cast the same way had they been
needed to pass the bill.(2)
President Cleveland had achieved a brilliant victory. In the
joust between him and Edmunds, in lists of his adversary's own
contriving, he had held victoriously to his course while his
opponent had been unhorsed. The granite composure of Senator
Edmunds' habitual mien did not permit any sign of disturbance to
break through, but his position in the Senate was never again
what it had been, and eventually he resigned his seat before the
expiration of his term. He retired from public life in 1891, at
the age of sixty-three.
From the standpoint of the public welfare, it is to be noted that
the issue turned on the maintenance of privilege rather than on
the discharge of responsibility. President Cleveland contended
that he was not responsible to the Senate but to the people for
the way in which he exercised his trusteeship. But the phrase
"the people" is an abstraction which has no force save as it
receives concrete form in appropriate institutions. It is the
essential characteristic of a sound constitutional system that it
supplies such institutions, so as to put executive authority on
its good behavior by steady pressure of responsibility through
full publicity and detailed criticism. This result, the Senate
fails to secure because it keeps trying to invade executive
authority, and to seize the appointing power instead of seeking
to enforce executive responsibility. This point was forcibly put
by "The Nation" when it said: "There is only one way of securing
the presentation to the Senate of all the papers and documents
which influence the President in making either removals or
appointments, and that is a simple way, and one wholly within the
reach of the Senators. They have only to alter their rules, and
make executive sessions as public as legislative sessions, in
order to drive the President not only into making no nominations
for which he cannot give creditable reasons, but into furnishing
every creditable reason for the nomination which he may have in
his possession."(3)
During the struggle, an effort was made to bring about this very
reform, under the lead of a Republican Senator, Orville H. Platt
of Connecticut. On April 13,1886, he delivered a carefully
prepared speech, based upon much research, in which he showed
that the rule of secrecy in executive sessions could not claim
the sanction of the founders of the government. It is true that
the Senate originally sat with closed doors for all sorts of
business, but it discontinued the practice after a few years. It
was not until 1800, six years after the practice of public
sessions had been adopted, that any rule of secrecy was applied
to business transacted in executive sessions. Senator Platt's
motion to repeal this rule met with determined opposition on both
sides of the chamber, coupled with an indisposition to discuss
the matter. When it came up for consideration on the 15th of
December, Senator Hoar moved to lay it on the table, which was
done by a vote of thirty-three to twenty-one. Such prominent
Democratic leaders as Gorman of Maryland and Vest of Missouri
voted with Republican leaders like Evarts, Edmunds, Allison, and
Harrison, in favor of Hoar's motion, while Hoar's own colleague,
Senator Dawes, together with such eminent Republicans as Frye of
Maine, Hawley of Connecticut, and Sherman of Ohio voted with
Platt. Thus, any party responsibility for the result was
successfully avoided, and an issue of great constitutional
importance was laid away without any apparent stir of popular
sentiment.
__________
(1) See The Path of Empire, by Carl Russell Fish (in The Chronicles of America,).
(2) The bill was passed by thirty yeas and twenty-two nays, and
among the nays were several Senators who while members of the
House had voted for repeal. The repeal bill passed the House by a
vote of 172 to 67, and became law on March 3, 1887
(3) The Nation, March 11, 1888.
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