18. The Department of Commerce. (Fairlie, _The National Administration of the United States_, chapter xvi.)

19. The Department of Labor. (Fairlie, _The National Administration of the United States_, chapter xvi.)

FOR CLa.s.sROOM DISCUSSION

20. The American Cabinet compared with the English Cabinet, (See Munro, _The Government of the United States_, pages 143-145.)

21. Should the President be obliged to act in accordance with the wishes of a majority of his Cabinet?

22. To what extent should promotion in the civil service be on the basis of length of service? To what extent should promotion be determined by periodic examinations?

23. Do you favor the creation of a new executive department, to be called the Department of Public Welfare?

CHAPTER XLII

NATURE AND POWERS OF CONGRESS

534. CONGRESS CONSISTS OF TWO HOUSES.--The National legislature, or Congress, consists of a Senate or upper chamber, and a House of Representatives or lower chamber.

Several factors are responsible for this division of Congress into two houses. Undoubtedly the framers of the Const.i.tution were influenced by the fact that the British Parliament and nearly all of the colonial legislatures consisted of two houses. A second factor is that in the opinion of the Fathers, a two-chambered legislature would allow each house to act as a check upon the other. Finally, the creation of a two-chambered legislature was necessary in order to reconcile the conflicting desires of the large and the small states. During the Const.i.tutional Convention two opposing factions were brought together by the creation of a two-chambered legislature, in the upper house of which the states were to be represented equally, and in the lower house of which representation was to be on the basis of population.

A. THE SENATE

535. TERM AND QUALIFICATIONS OF SENATORS.--Two Senators are chosen from each state, regardless of population. The senatorial term is six years. In order to make the Senate a permanent body, membership is so arranged that one third of the Senators retire every two years. The Federal Const.i.tution provides that Senators must be at least thirty years of age. In addition, a Senator must have been nine years a citizen of the United States, and he must be an inhabitant of the state from which he is chosen. The Senate alone is judge of the qualifications of its members.

With respect to the Senate, two disqualifications are imposed by the Federal Const.i.tution. No one holding a Federal office may stand for election as Senator. Nor may any person become a Senator who has taken part in a rebellion against the United States after having taken an oath as a government officer to support the Const.i.tution.

536. THE ELECTION OF SENATORS.--Previous to 1913 Senators were chosen by the various state legislatures, according to the provisions of the Federal Const.i.tution. [Footnote: Article I, Section III.] This method proved unsatisfactory. Demoralizing political battles often took place in the state legislatures in the effort to select the states' Senators to Congress. Sometimes, even after a long struggle, no candidate was able to secure a majority, and a deadlock occurred. Thus, on the one hand, a state might be deprived of representation in the Senate for weeks or months, while, on the other hand, the attention of the legislature was so distracted by the senatorial struggle that purely state interests suffered. As the result of a long agitation growing out of these evils, the Federal Const.i.tution was amended (1913) to permit the direct election of Senators.

Since 1913, then, any person may vote directly for Senator who, under the laws of his state, is qualified to vote for members of the more numerous branch of the state legislature. When, for any reason, a vacancy occurs in the representation of any state in the Senate, the Governor of the state issues a writ of election to fill such vacancy.

Provided the state legislature grants the authority, the Governor also may appoint some person to serve as Senator until the vacancy is filled by popular election. Senators are generally reflected, and at the present time the average term of service is not six, but about twelve years.

537. PRIVILEGES AND IMMUNITIES OF SENATORS.--By the terms of the Const.i.tution, Senators are paid out of the national treasury an amount to be determined by statute. At present both Senators and members of the House of Representatives receive $7500 a year, plus an allowance for travelling expenses, clerk hire, and stationery. Except in case of treason or breach of the peace, Senators and Representatives are immune to arrest during attendance at the sessions of their respective houses, and in going to and returning from the same. Both Senators and Representatives likewise enjoy freedom of speech and debate in their respective houses. In either chamber only the house itself may call members to account for their statements during the legislative session. No member of Congress may be prosecuted in the courts for libel or slander on account of statements made in Congress, or for the official publication of what he has said during the legislative session.

B. THE HOUSE or REPRESENTATIVES

538. MEMBERSHIP OF THE HOUSE.--Since the Senate is composed of two Senators from each state, its membership has been relatively stable.

For a number of years there have been 96 Senators, two for each of the forty-eight states of the Union.

The membership of the House of Representatives, on the other hand, is steadily increasing, because based upon population. The number of Representatives to which any state is ent.i.tled depends upon its population as ascertained every ten years by a Federal census. After each census Congress determines the number of Representatives of which the House shall consist. The population of the United States is then divided by this number, and the quotient is taken as the ratio of representation. The population of each state is then divided by this ratio to discover the number of Representatives to which it is ent.i.tled. As a single exception to this rule, the Const.i.tution provides that each state shall have at least one Representative regardless of population. Thus Nevada, Arizona, Wyoming, and Delaware are ent.i.tled to one Representative, whereas according to the above rule they would now be denied representation.

The present membership of the House of Representatives is 435.

539. WHO MAY VOTE FOR REPRESENTATIVES.--The Federal Const.i.tution provides that members of the House of Representatives shall be chosen by persons who, in their respective states, are qualified to vote for members of the more numerous branch of the state legislature. Most male and female citizens over twenty-one years of age may vote for members of this more numerous branch, and hence for Representatives to Congress. In a number of states, however, educational, property and other qualifications are imposed. Certain types of criminals, the insane, and the otherwise defective are regularly excluded. [Footnote: For a fuller discussion of the suffrage, see Chapter x.x.xIII.]

540. QUALIFICATIONS OF REPRESENTATIVES.--The Federal Const.i.tution declares that a Representative must be at least twenty-five years of age. He must have been a citizen for at least seven years, and at the time of his candidacy must also be an inhabitant of the state from which he is chosen. The House itself determines whether or not these qualifications have been met. No state may add to the const.i.tutional qualifications, but through the force of custom a Representative is almost always a resident of the district which he is chosen to represent.

541. ELECTION OF REPRESENTATIVES.--The Federal Const.i.tution permits the legislatures of the several states to regulate the time, manner and place of elections for its Representatives to Congress.

However, the Const.i.tution reserves to Congress the right to alter these regulations at its discretion. This right has been exercised several times. Congressional statute has provided that Representatives shall be elected on the Tuesday following the first Monday in November of even-numbered years, and that the election shall be by written or printed ballot. It is also in accordance with Congressional statute that Representatives are selected on the district plan, one Representative being chosen from each Congressional district in the state. Congress has furthermore provided that these districts shall be of as nearly equal population as possible, and that they shall be composed of "compact and contiguous territory."

542. THE CONGRESSIONAL DISTRICT.--Subject to the above limitations the legislature of each state may determine the boundaries of its Congressional districts. The state legislature finds it necessary to redistrict the state if the decennial census shows that the population of the state has increased unequally in various sections, or in case the apportionment act of Congress changes the state's representation.

In many cases states have redistricted their territory for illegitimate reasons. The Federal provision with reference to contiguous territory has been loosely interpreted: in many cases territory is held to be contiguous if it touches the district at any point. The requirement that districts shall be of nearly equal population has often been disregarded altogether. Since the state legislature is controlled by the political party having a majority, the dominant party can arrange the district lines so as to secure a party majority in the greatest possible number of districts. This is done by concentrating the opposition votes in a few districts which would be hostile under any circ.u.mstances, and so grouping the remaining votes as to insure for the dominant party a majority in numerous districts.

543. GERRYMANDERING.--The result of this illegitimate redistricting has been to create districts of great irregularity. In 1812, when Elbridge Gerry was Governor of Ma.s.sachusetts, the Republican party was in control of the state legislature. In districting the state so as to win for themselves as many districts as possible, the Republicans gave one of the Congressional districts a dragon-like appearance. To the suggestion of a famous painter that this looked like a salamander, a local wit replied that it was more nearly a Gerrymander. The term "gerrymander" has since continued to be used to designate this type of illegitimate redistricting. [Footnote: For the relation of gerrymandering to the problem of minority representation, see Chapter x.x.xV.]

544. TERM OF REPRESENTATIVES.--Representatives are elected for two years, the legal term commencing on the 4th of March following the election. Except in the case of a special session, the actual service of Representatives does not commence until the first Monday in December, thirteen months after election. Members are frequently reelected, the average term being about four years. When for any reason a vacancy occurs in the representation from any state, the Governor may, on the authority of the Federal Const.i.tution, issue a writ of election to fill the vacancy. A special election is then held in the district in which the vacancy has occurred, and the Representative so chosen serves for the remainder of the term. [Footnote: The privileges and immunities of Representatives are similar to those of Senators. See Section 537 of this chapter.]

C. THE POWERS OF CONGRESS

545. SPECIAL POWERS OF THE SENATE.--Of the three powers exercised exclusively by the Senate, the power to approve treaties is one of the most important. All treaties negotiated by the President must be approved by a two-thirds vote of the Senate before becoming law. The treaty may be approved or rejected as a whole, or it may be rejected in part, and additional articles recommended as amendments. If changed in form or content by the Senate the treaty does not become law until both the President and the foreign power have a.s.sented to the amendment or change.

In order to become valid, a large number of Presidential appointments must receive the approval of the Senate. [Footnote: See Chapter XL, Section 518.]

The Senate exercises a special judicial function in that it may sit as a court of impeachment for the trial of persons whom the House of Representatives has formally charged with treason, bribery, or other high crimes and misdemeanors. Excluding military and naval officers, who are tried by court-martial, and excluding also members of Congress, who are subject only to the rules of their respective houses, all Federal officers are subject to impeachment. Impeachment requires a two-thirds vote of the Senators present. Removal from office and disqualification to hold any office under the United States is the heaviest penalty which can be imposed upon an impeached official.

546. SPECIAL POWERS OF THE HOUSE.--The House likewise enjoys three special powers.

One of these is the right to elect a President of the United States in case no candidate has a majority of the electoral votes. This has happened only twice, in 1800, and again in 1824.

The Federal Const.i.tution provides that all revenue bills must originate in the lower house. However, the Senate has come to share this power through its power to amend such bills.

The House of Representatives has the sole power to prefer charges of impeachment, that is to say, to present what may be called the indictment against the accused official. The case is then tried before the Senate, the House appointing a committee of its own members to act as the prosecuting agency.

547. GENERAL SURVEY OF THE POWERS OF CONGRESS.--The powers of Congress, _i.e._ the two houses acting together, are of two kinds: First, express powers, by which is meant those specifically enumerated in the Federal Const.i.tution; and second, implied powers, by which is meant those which are incident to express powers and necessary to their execution. The foundation of the doctrine of implied powers is the const.i.tutional clause [Footnote: Article I, Section VIII, of the Const.i.tution.] which authorizes Congress to make all laws "necessary and proper" for carrying out the powers granted it by the Federal Const.i.tution.

Grouping express and implied powers together, the more important powers of Congress may be summarized as follows:

_Revenue and expenditures_. Congress has the power to lay and collect taxes, duties, imports, and excises, and to appropriate money in order "to pay the debts and provide for the common defense and general welfare of the United States." But indirect taxes must be uniform throughout the United States, and all direct taxes, except income taxes, must be apportioned among the states according to population. A further limitation is that Congress may not tax exports from any state, nor levy upon the "necessary instrumentalities" of any state government.

_National defense_. Here the powers of Congress are practically unlimited, except by the const.i.tutional provisions that the President shall be commander-in-chief, and that military appropriations shall not be made for more than two years. Congress can raise and support armies, create and maintain a navy, and provide for the organization and use of the state militia. Congress may also declare war, and make rules concerning captures on land and sea.

_Foreign relations_. Congress as a body has little direct control over foreign relations, though the Senate shares the treaty-making power with the President. But Congress has the power to create diplomatic and consular posts, as well as "to define and punish piracies and felonies committed on the high seas, and offences against the law of nations." Congress also exercises control over immigration and naturalization.

_Economic interests_. Congress may regulate commerce with foreign countries, among the several states, and with the Indian tribes. The exclusive power to coin money, and otherwise control the monetary system, is vested in Congress. Congress may make uniform laws on bankruptcy throughout the United States, and fix the standards of weights and measures. The establishment of post offices and post roads, and the protection of authors and inventors through legislation on patents and copyrights, are also functions of Congress.

_Territories_. Congress has the power to dispose of, and make all needful rules and regulations respecting, the territory or other property belonging to the United States. Congress likewise exercises exclusive control over the District of Columbia, and over all places purchased by the Federal government for the erection of forts, a.r.s.enals, and similar buildings. Congress also has the right to determine the admission to the Union of new states, and "to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States."

_Crime_. In criminal matters the power of Congress is slight. For example, it cannot say what const.i.tutes treason, since that crime is defined by the Const.i.tution. However, Congress may provide for the punishment of counterfeiters and persons committing crimes on the high seas or offences against international law. It may also define certain crimes against Federal law, and prescribe penalties therefor.