understood that the Constitution vested the judicial branch with a veto power. No such veto power was claimed or exercised by the supreme court until many years after the Constitution had been in force. Finally, however, this power was asserted and exercised, and is now exercised, with the approval of many people and over the protest of many others. The courts have not only asserted and exercised the veto power, but have also exercised a legislative power. We had a clear illustration of this in the recent decision of the Supreme Court under the provisions of the Sherman Act prohibiting combinations in restraint of trade. After declaring that to give a certain construction to that act would be to exercise legislative power by reading into the statute something which Congress had repeatedly refused to place there, the court ignored its previous declarations and expressly read into the statute a word that materially changed its meaning. This was clearly the exercise of legislative power. It was the establishment of a precedent which meets some approval and much disapproval. If that course on the part of the Supreme Court shall be acquiesced in by the people of the country, it will be followed in future cases until, by common consent, we shall have amended the Constitution in effect by conferring upon the court a somewhat limited, but nevertheless actual, legislative as well as veto power. These encroachments of the judicial upon the powers of the legislative branch of government have been open and public and the people are in a position to judge whether they approve or disapprove. They can form their own opinions of the effect of conferring upon judges who are appointed for life the power to veto acts of Congress. They can understand that if the courts assert and secure the right to change a statute to suit themselves and also the right to declare a statute unconstitutional, they may later amend an act of Congress and then declare it unconstitutional as amended and because of the amendment. While highly improbable yet it is possible that if the two powers exist they might sometime be jointly exercised. Experience has shown that society should be protected against possible as well as probable menace. EXECUTIVE DEPARTMENTS TAKING OVER LEGISLATIVE POWERS But there have been some changes in our taking place, that are not generally known to the American people, and the full significance of which is not understood. To a few of these changes I now direct attention. There has been a constantly growing tendency to confer legislative power upon the administrative departments either by granting them wide discretion in the exercise of authority or by authorizing them to adopt and enforce rules and regulations. The appetite for power is a natural one. It is one of the forces controlling human action which must be kept in mind when determining governmental policies. History is full of demonstrations of the truth of the assertion that governing power increases its scope through its own activities until misuse necessitates destruction of the power. In every city, county, and State, in the nation at large, and even in the field of international affairs, we see constant evidence of the ever-growing desire of men in authority to increase their power. The old theory that that government is best which governs least finds little favor with those in authority. Every public servant aspires to be a master of his fellow men. He reaches out for more authority-assumes it if he dares and asks that it be conferred upon him if he dares not assume it. This tendency has grown until we have officers in our cities who supervise almost every human activity and each officer, as a rule, is urging that greater supervisory power be given. In our federal government we have department heads and bureau chiefs, each wanting more power, more money, more scope, more latitude. My remarks on this subject are not intended as a protest against legislation protecting the welfare of all against the carelessness or maliciousness of a few, but as a protest against delegating to executive officers the power to legislate either through the promulgation of rules and regulations or through the exercise of discretionary power. In my opinion every law for the regulation. of individual activity should be comprehensive in scope and explicit in terms so that every man may point to the plain language of the statute which assures him a right or imposes upon him a duty. That which exists only in the mind of some supervisory official is uncertain and changing. The uncertainty and changeableness are due to the whims or prejudices or favoritism of the officer. Inequality and injustice are the result. Equality and justice are attained only by placing in plain language on the statute books the GRANTED ΤΟ OFFICIALS State from whose land-sales the funds were derived. We have had illustrations of the delegation of discretionary authority amounting practically to legislative power in the case of the pure food laws where it has been shown that the administrative officers had the power to make an act lawful at one time and unlawful at another. Manufacturers of foods are in doubt as to what they can or cannot do without danger of punishment. As I have already indicated, there is a desire on the part of executive and administrative officers that laws for the regulation of our citizens be very general in terms, merely defining the subject matter and leaving to the administrative officers the power to promulgate the specific rules and regulations. Recommendations by the executive departments too frequently contain the suggestion that the law enacted permit the executive to act "in We have seen in the administration of the his discretion.' In my opinion this sort of affairs of the postal service one magazine legislation is not only contrary to the intent sent by mail and another sent by freight withof the Constitution, but is extremely unwise. out any definite law or rule or regulation The power of bureaucracy over the busi- which clearly defines the terms and conditions ness and affairs of citizens is felt in nearly upon which the discrimination is based. The every walk of life, yet the importance of this publisher is not certain that his magazine phase of government does not impress the will continue in the mail trains and such unaverage individual because he personally feels certainty is a constant business hazard. The the strong hand of authority only in isolated extent of his right rests upon the judgment instances. The head of a large commercial of some bureau clerk in the department. His enterprise controlling a large proportion of rights and privileges change whenever the the total business of the industry in which he judgment of the clerk changes. is engaged, realizes that whether his business' is or is not an unreasonable combination in restraint of trade depends upon the judgment of some one in the Department of Justice and he restlessly awaits the uncertain exercise of the power of determination. ILLUSTRATION: THE WIRELESS TELEGRAPH BILLS A timely and striking illustration of the tendency to delegate legislative power was seen in the bills for the regulation of wireless The settler who is building a home on the telegraphy, recently before the Senate. The frontier and who must go to a forest reserve wrecking of the Titanic made these bills of for his fuel or fence posts or home-made particular interest. Most of the bills proshingles endeavors to please the forest ranger posed that Congress enact a law for the and comply with the rules and regulations licensing of wireless operators but left to the but he never knows definitely whether he has done so or not, if the exigencies of the situation make it necessary for him to act without the personal supervision of the ranger. President or the Department of Commerce and Labor the power to promulgate the rules and regulations under which the wireless operations could be conducted. This would The homesteader who finds it hard to make be, in effect, delegation of the legislative a living for his family during the period of power to the administrative departments. improvement of his land and who borrows It would be evasion of the Constitution. By money therefor or leaves temporarily in order to earn money elsewhere for the purpose, rests under constant apprehension that the secret report of the special agent, which he or his representative is not permitted to read, will place an unjust interpretation upon his borrowing money or his temporary absence, The captain of industry and the frontier settler realize the power of bureaucracy over their own separate interests, but neither knows the manner in which the other is affected. The citizens of a great State are denied a due proportion of the reclamation funds because the bureau heads have expended an undue proportion elsewhere and the funds are passing such an act Congress would vest the Department of Commerce and Labor with the power to make a law, interpret that law, and enforce it, thus combining the three functions, legislative, executive, and judicial, in one bureau. That would be the perfection of bureaucracy. The wireless telegraph bills were referred to the Senate Committee on Commerce and in their place a substitute bill was reported, prescribing as definitely as practicable the rights which can be exercised and the limitations which must be observed in the operation of wireless telegraph apparatus. My views of the proper scope of legislation of this character were expressed in the report sub substitute bill, and those views apply to all intermittent dictatorship, the President belegislation of similar character, placing re- ing dictator and the extent of his power destrictions upon individual activity. I shall pending on the personal equation of the therefore quote the following paragraphs from individual occupying the office. If the indithe report: vidual be a man of great experience, broad ideas, high ideals, and deep-seated convictions, his influence (in the general balance struck at the end of his administration) may be for the benefit of the general welfare of the nation, but if the President happens to be a man of little experience in the many problems of government and society, or lacking in ideas, ideals, or convictions, the injury he can work upon the welfare of ninety millions of people during his administration is incalculable. This (substitute) bill differs radically in its method of regulation from the earlier measures and establishes a principle which it is believed can be followed with advantage to all concerned in legislation on other subjects. At all events the committee is determined that legislation for the regulation of radio communication at the outset shall be based upon what its members believe to be sound principle. The former bills delegated to the President of the United States in the first instance and subsequently to the Secretary of Commerce and Labor the power to make regulations governing radio communication which should have the force of law. That amounted practically, Whether the individual be a man possessat least in the judgment of some members of this ing or lacking ideals and convictions, he is committee, to the surrender by Congress of its at best but an echo on many problems of powers and the bestowal of legislative power to all intents and purposes upon administrative offi- government because of the inability of any cers. This feature of former bills, for which there one man to grasp, analyze and decide upon has been too frequently precedent in legislation, the details of the multitude of questions that not only admitted of the arbitrary exercise of arise. When a President has been elected he power but left those who should be subject to its exercise entirely in the dark as to what they could appoints a cabinet nearly all of whose memor could not do without thwarting the purpose of bers may have had little if any experience Congress. The committee is not unmindful of the with governmental administrative work. The fact that in the case of Buttfield v. Stranahan President naturally relies upon the advice of (192 U. S., 496) the Supreme Court held: the department heads in matters regarding the operations and functions of their several departments. The new cabinet officer, designated as the head of a department, necessarily depends upon the advice of some bureau head, who, in turn relies upon information and advice from a division chief. The action to be taken by the President depends not only upon his own judgment but upon the accuracy of the information and the soundness of the judgment of division chiefs who are never known to the public. Congress legislated on the subject as far as was reasonably pelled to leave to executive officials the duty of bringing practicable, and from the necessities of the case was comabout the result pointed out by the statute. There is always danger, however, that this decision may be invoked either for the purpose of seeking opportunity to exercise power unrestricted by the will and purpose of Congress or that it may be invoked in behalf of hasty legislation. It is easy for administrative officers who are too indolent to frame for the consideration of Congress a statement of the precise purposes which they have in view, or who are not sufficiently informed as to the methods by which those purposes may be attained, to ask Congress to bestow upon them the general power of regulation. Congress is asked to act upon the spur of the moment while administrative officers reserve to themselves indefinite time in which to obtain the knowledge for intelligent action under the grant of arbitrary power. It is perhaps worth the consideration of the Senate that when the British Parliament bestows such general powers of regulation the bestowal is frequently accompanied by the statutory requirement that such regulations must be laid before Parliament for a reasonable time before taking effect. THE PRESIDENT'S VAST POWERS Adoption and continuance of the policy of delegating to administrative departments the power to promulgate rules and regulations having the force of law, amounts to abdication by Congress of the position assigned it in our governmental system. To a large CONTROL OF INFORMATION BY THE The Constitution makes Congress the legislative branch, but provides that the President shall communicate to Congress information concerning the state of the Union and shall recommend such measures of legislation as he shall deem necessary and expedient. Starting from somewhere below the division chiefs, the information finally gets to Congress, with recommendations more or less the product of the observations, interests and conclusions of these lower officials. Being in possession of the original sources of information, the bureaus exercise a very large influence over legislation unless Congress determines upon an investigation of facts on its own initiative. executive branch the control of information based upon ethical and intellectual individual upon which legislation must be based, was development rather than service to some selfillustrated in the creation of a tariff board. ish interest. I believe in a tariff commission as necessary in the collection of data in order that Congress may act advisedly upon a very complicated subject of interest to all the people of the country, but since the Constitution places upon Congress the responsibility for the levying of import duties, I believe that any tariff commission should be selected by Congress, should work under the direction of Congress and report directly to Congress. If the executive branch of government has the power to appoint the members of the tariff board, it thereby has power to select men whose opinions or prejudices are in accord with one or the other view of the tariff question. The executive branch also has the power to determine which phases of the tariff question shall be taken up for investigation first, and which shall be left until the last, or indefinitely postponed. There is a presumption that in enacting tariff legislation Congress will be guided very largely by the information secured and submitted by the tariff board. Unless that is true, there is little reason for the existence of such a board. If legislative action is guided by the report of the tariff board, then, in effect, the establishment of an executive commission means that Congress virtually turns over to the executive branch the power and duty of performing legislative functions. MAKE CONGRESS MORE EFFICIENT In my opinion, the power of the executive has already passed the limits of wisdom and should be curtailed rather than increased. NOMINATION OF FEDERAL EMPLOYEES Another step must be taken before Congress can become independent of the administrative branch. The President must be deprived of the tremendous power of nomination of Federal employees. But the reader says that the Senate's right of rejection of a nomination should be an effective check against the misuse of this power. The constitutional right of the Senate in this direction has become a farce. A President, wishing to use the nominating power to punish or reward members of Congress who disagree with his views, will hold that the constitutional provision "by and with the advice and consent of the Senate" means the whole Senate and does not refer to the Senators in the respective States where the appointees are to serve. The President, anticipating opposition to some nomination he desires to make for the purpose of building up a Federal machine, can withhold nominations until just before the adjournment of Congress when insufficient time exists for the Senate to investigate the merits of the nomination. A recess appointment is then made. When Congress again convenes, if the Senate neither confirms nor rejects, the President again re-appoints the same individual as soon as Congress adjourns. If the Senate does reject and the nominee rejected is an incumbent of the office, the President can permit him to continue to hold the position under his original appointment, notwithstanding the Senate had rejected his nomination. How can this be accomplished? First, vitalize Congress. Why? Because Congress Until some plan is evolved by which the with over 500 members should, and must, President is divested of this power of nominatunder popular government more accurately ing the Federal office-holders in the several represent the general welfare of the nation States, just so long will there be subserviency than any single individual can possibly do. on the part of some members of Congress How? By the general enactment, either to the President, because no member of nationally or in every State, of primary laws, Congress desires to appear before his constituwith efficient corrupt practices acts so that ents as persona non grata with the nation's every member of Congress owes his nomina- chief executive. I expect to introduce a tion and election to the composite citizen, Constitutional amendment at the next sesindividual unknown. Thus a member of sion which, if adopted, will furnish the deCongress will readily realize that the possi- sired remedy. bility of his renomination depends entirely upon his serving the general welfare and not the selfish interest of any dominant individual or factor in any caucus or convention. The This review of the conditions that exist sole measure of the retention of the public is preliminary to a further suggested remedy CONGRESSIONAL COMMISSIONS less reason for leaving to the discretion and work of a session. In my opinion the Senawhim of administrative departments im- tors and Representatives at the heads of the portant measures for the regulation of the business and affairs of our people. large committees should remain in Washington during the greater part of the recesses of Congress and study the more intricate subjects of governmental policy. Then a month or two before Congress convenes the heads of the revenue and appropriation committees of the two houses should meet in joint session and confer with the heads of departments regarding desired or needed appropriations, the reasons therefor, and the manner in which appropriations have been expended in the past. Since ascertainment of facts must precede well-considered action, either legislative or administrative, it follows that Congress cannot be in a position to act advisedly unless its plan of work permits of full consideration of the affairs of government. It has been the policy in the past for Congress to create commissions, appointed by the President, acting under his direction and reporting to him in the first instance, for the investigation of various important subjects upon which legislation There is now little, if any, coördination is desired. Such commissions conduct their among committees. The same has been true inquiries along the lines that seem best to of the administrative departments, with the them and submit to Congress such informa- result that many duplications have been tion and recommendations as they deem permitted, there has been a lack of standardadvisable. ization and opportunities for economy have in the world-will not be operated with the best results at the least cost until there is closer coöperation among Congressional committees and with the departments. In my opinion this policy is unwise. Com- been overlooked. The present Economy missions whose province it is to inquire into Commission will doubtless accomplish some subjects with a view to legislation should, if desirable results, chiefly temporary in characpracticable, be composed of members of the ter, but in my opinion the governmental two houses of Congress, so that when the machinery-the largest business enterprise subject comes up for action, there will be on the floor of each house men who participated in the investigation and who can answer inquiries of any member as to the nature, scope, thoroughness and accuracy of the investigation and its results. In any event, a commission created to secure information upon which legislation will be based should be appointed by and be responsible to the legislative branch of government. If an administrative commission secures and submits to Congress the statement of facts and conditions, then the administrative branch largely controls and directs the legislation. Moreover, in my opinion, Congress cannot act upon the ordinary governmental business with the full understanding it should have, unless a more efficient method is adopted. The field of governmental activity has become so extensive and the amount of the governmental expenditures has become so great that it is difficult for members of Congress to study and comprehend the problems involved and at the same time conduct the At conferences held by committee chairmen with the heads of departments at a time when all are free from the rush and confusion of the session of Congress, the total probable revenues could be determined, the merits of desired appropriations considered, and if it be found that the revenue will not meet the estimated expense, then the proposed items of expense could be analyzed and a determination reached as to which are absolute necessities and which can be postponed for another year or two without militating against governmental operations. If it be found that the estimates cannot be cut down without impairing governmental efficiency, then attention would be directed to the problem of providing the revenue. Thus would be established a coördination not now existing between the legislative and administrative branches of the government. |