Unless Congress can be brought into subordination to the general welfare it is doomed. That is why I said. that the action taken by Congress making it the duty of the President to coördinate income and expenditure is the salvation of representative government in the United States. The logical significance of this action is that the numerous pass-keys to the national treasury now held by congressional committees must be given up and that there shall be but one key, which shall be in the custody of the President. Upon the creation of just such a situation as that the efficiency of representative government depends. Its essential principle is to fix the representatives so that they cannot put their own hands into the till; then they will keep a good watch over those who do handle the money. Congressmen will take a very different view of porkbarrels from that now held when they can no longer help themselves to the pork.

Observe how the new rule is beginning to work. President Taft in his message of December 9, 1909, reported that as a result of the new method of making up the estimates departmental demands had been curtailed so that the estimates transmitted to Congress were less than the appropriations for the fiscal year then current by $42,818,000. But it would be obviously futile to prepare estimates if they may be crossed by other estimates privately transmitted to Congress by department officials. So executive order No. 1142 was issued as follows:

"It is hereby ordered that no bureau officer or division chief or subordinate in any department of the Government and no officer of the army or navy or Marine Corps stationed in Washington

shall apply to either house of Congress or to any committee of either house of Congress, or to any member of Congress, for legislation or for appropriations or for Congressional action of any kind except with the consent and knowledge of the head of the Department; nor shall any such person respond to any request for information from either house of Congress or any committee of either house of Congress or any member of Congress, except through or as authorized by the head of his department."

This necessary restraint upon individual interference by Congressmen with executive function at once evoked protests. According to a Washington dispatch in the New York Sun of December 1, 1909: "Those Senators and Representatives who have read the text of the order are up in arms over it, saying that it abridges rights and privileges that members of Congress have had conceded for fifty years or more." Despite the disagreeable obstruction which the order puts in the way of Congressmen when acting as special agents for interests engaging their service, the enforcement of it is unavoidable if the public expenditure is to be brought under the control of public motive and restricted to public account. The proper place for intelligence between the executive departments and Congress is on the floor of Congress, through the presence of the heads of the departments, as in Switzerland.

Consideration will show that pursuance of the duty of budget supervision now resting upon the President will require far more energetic exertion of his constitutional authority than is manifested by executive order No. 1142. The estimates as prepared by the heads of departments under executive supervision will be illusory, if Congress itself may issue orders directly to heads of departments for the preparation of estimates without

consulting the President. This very thing Congress does by the device known as the concurrent resolution, a legislative act which is not laid before the President, but which nevertheless directs the Secretary of the Treasury and the Secretary of War to frame the estimates on which the appropriations are made for public buildings and for river and harbor improvements. However submissive and deferential individual incumbents may be, sooner or later the budget responsibilities of the presidential office will incite some action to repel this invasion of its constitutional prerogative. The President ought not to allow any of the executive departments to treat concurrent resolutions as of any legal force or effect.

Another matter which the pressure of the President's budget responsibility must eventually make acute is supervision of the items of appropriation bills. His estimates will be of small practical importance if Congress may exceed them at pleasure and require him to spend more than he thinks necessary or judicious. It is a frequent occurrence for the Senate to pad the appropriation bills of a session by much more than the amount of the reduction which has been made by the President in submitting the estimates. Is the President bound to accept and spend money against his will and judgment? Take the case of that item of $47,000 in 1903 which was denounced in the House as "legislative blackmail," but which was acquiesced in to avert the failure of the bill.1 Is the President likewise helpless? Is there no power anywhere in our constitutional system able to cope with such an emer1 See ante, p. 27.

gency? The logical corollary to the budget responsibility laid upon the President is that he shall apply his veto power to the items of appropriation bills. Any movement in that direction would, of course, raise a constitutional issue of profound importance, in which much could and would be said on both sides. Beyond some mention of historical circumstances, I shall not afflict you with a foretaste of such a discussion now. The issue when it arises will be determined by preponderance of political force, and much will depend upon the circumspection of the President who faces that issue. A President in conjunction with the House can beat the Senate to its knees; but it will be a dubious contention should he attempt to withstand both houses of Congress. There is a natural affinity between the President and the House which under proper cultivation should provide facilities for joint action. If, for instance, the President had vetoed that $47,000 item denounced by the House, what could the Senate have done to uphold it?

If ever the constitutional lawyers get to work on this question they will doubtless dig up precedents now unnoted. A clause of the Constitution which would be sure to figure largely in such a discussion is the last clause of Sec. 7, Art. 1, to which I have adverted several times in these lectures. It requires that "every order, resolution, or vote, to which concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States." The exception gives remarkable breadth to the rule. If it does not really bring votes within the scope of

1

executive examination, what does it mean? It is a significant fact that in English parliamentary practice the different classes of appropriations are known as "votes." If it is a case of take all or nothing when the appropriation bills reach the President, he may be put under a duress that practically annuls his constitutional rights. In a message of August 14, 1876, President Grant claimed discretionary authority over the items of appropriation bills, and a like doctrine was propounded by Senator John Sherman in the course of a debate on the river and harbor bill on June 3, 1896. He declared that appropriations were not mandatory, but simply permissive. "If the President of the United States should see proper to say 'That object of appropriation is not a wise one; I do not concur that the money ought to be expended,' that is the end of it." It is safe to say that the great invasion of executive function that has been accomplished by Congress will not be repelled save by Jacksonian vigor in the use of all the resources of presidential authority. They are ample for the purpose when skilfully and energetically applied, and the nature of this budget problem is such as to demand their use. It is possible for a President to put legislation through Congress by private persuasion and entreaty, and by starting a back fire to smoke out committee hiding-places by means of speech-making to the people, although the legislation will be apt to be botched in character, and his speech-making will be depreciated in quality by accommodation to the conditions of the stump, which

1 See Redlich's "Procedure of the House of Commons," Vol. III,

p. 139.