by Ray Raphael
James Madison offered a cogent defense of presidential removal power. First, he noted that where the Constitution was “silent,” as it was in this case, “an exposition of the constitution may come with as much propriety from the Legislature, as any other department of the Government.” Then he offered his own “exposition,” based on the first sentence of Article II of the Constitution, “The executive Power shall be vested in a President.” Each branch was to remain distinct unless otherwise stipulated, and although the Constitution did allow some instances of shared power, whenever these were not explicitly stated, executive functions, including removal of executive officers, must revert to the executive department, headed by the president. Like his opponents, Madison argued his approach was not only constitutionally sound but also good policy. The president was “appointed at present by the suffrages of three millions of people,” and that number would soon increase as the population expanded. “With all the infirmities incident to a popular election, corrected by the particular mode of conducting it, as directed under the present system, I think we may fairly calculate that the instances will be very rare in which an unworthy man will receive that mark of the public confidence which is required to designate the President of the United States.” The president, in other words, was to be trusted to exercise the power of removal judiciously because he would be a trustworthy person, certified by the people through what he euphemistically called the “particular mode” of presidential selection by electors. Here was a sweeping endorsement of all presidential powers, based on the assumption that the president alone represented all the people. Madison would soon come to question this line of reasoning in other matters, but for now he stuck to a rather circular logic: powers could safely be granted to the president because the Constitution had done such a marvelous job in ensuring he would be a good man.
Madison used another line of reasoning as well. If the president required the concurrence of the Senate before removing an executive officer, that officer could ensure his tenure in office simply by courting the approval of the majority of senators. The secretary of foreign affairs and other important officials would thus come under the sway of legislators instead of the chief executive, and executive accountability would be lost. Department heads could endure in office indefinitely, while the president had to stand for reelection every four years. The entire notion of a single chief executive would thus be undermined, or, in Madison’s dramatic words, “the power of the President” would be reduced “to a mere vapor.”9
The dispute continued. With the original document “silent” on the matter, each representative had a chance to say his piece, and most did. For members of the House who had attended the Federal Convention, arguing over the proper balance of power among the branches must have felt familiar, and for those who had not participated in framing the Constitution, here was their chance. One after another weighed in, and as they did, speakers on both sides vied with each other for who could best convey the overwhelming sense of gravitas. “The decision that is at this time made, will become the permanent exposition of the constitution; and on a permanent exposition of the constitution will depend the genius and character of the whole Government,” Madison said. “I own to you, Mr. Chairman, that I feel great anxiety upon this question … because I am called upon to give a decision in a case that may affect the fundamental principles of the Government under which we act, and liberty itself.” Not to be outdone, Georgia’s James Jackson declared, “The liberties of my country may be suspended on the decision of this question,” but top honors probably went to Richard Bland Lee, cousin to Richard Henry Lee. “The day on which this question shall be decided will be a memorable day, not only in the history of our own times, but in the history of mankind,” Lee predicted. “On a proper or improper decision, will be involved the future happiness or misery of the people of America.”10
Notwithstanding the hyperbole and seemingly pervasive sense of self-importance, this was in fact an issue of lasting significance. If Congress decided one way, department heads would be under the direct command of the president, and there would in fact be a single chief executive; if it decided the other way, executive department heads would wind up either answering to the Senate or playing the Senate against the president, effectively creating fiefdoms within their respective fields of authority. Whether or not any of these scenarios would spell an end to liberty or result in the happiness or misery of the American people, resolution of the removal debate would fundamentally shape the distribution of authority in the newly created government. Pending the outcome, there would or would not be an institution resembling what we now call the president’s cabinet.
On a matter deemed this critical, no representative dared call the question to end discussion until midway through the third day of debates, and even then, when some tried, Thomas Sumter from South Carolina “begged gentlemen not to be so precipitate” and then warned them sternly, “If they considered the importance of the question, and the consequences of the decision, they would reflect more deliberately before they gave their votes.” Whether reflections and deliberations continued, the rhetoric certainly did, and nobody tried to stop it for another day and a half, even though there is no indication that a single member wavered the slightest from his prior position. Finally, late on Friday afternoon, after four full days of debates (captured in 125 pages of the Annals of Congress), the motion to strike “to be removable from office by the President of the United States” failed by a vote of 34 to 20. No other phrase, clause, or sentence commanded such attention or excited such passion during the First Federal Congress; even the Bill of Rights, the lack of which had almost doomed the Constitution, failed to occupy Congress as fully as the great removal debate.11
And that debate was not yet over. After passing the House, the president’s power to remove the secretary of foreign affairs (and by implication other department heads) was taken up by the Senate, where it faced tougher resistance. Senators, unlike representatives, had a stake in the matter: they would gain immeasurable influence over the governmental apparatus if they insisted on a share of removal power. Throughout history, few governmental bodies had opted for less power instead of more, but would the fledgling U.S. Senate do so now? Only a strong dose of disinterested republican virtue, a firm ideological commitment to the need for greater executive authority, or an anticipation of increased favors from the executive would cause senators to vote against their apparent self-interest.
The Senate debate commenced on July 14 and lasted three days, but unfortunately, because the Senate met behind closed doors, the only record of their debates is William Maclay’s one-sided journal, in which he gives himself center stage. “It is a maxim in legislation as well as reason,” Maclay told his colleagues, “that it requires the same power to repeal as to enact. The depriving power should be the same as the appointing power.” This was the opposition’s bare-bones argument. To represent the opposing view, Maclay in his journal summarized a speech by Connecticut’s Oliver Ellsworth: “I buy a square acre of land. I buy the trees, water, and everything belonging to it. The executive power belongs to the President. The removing of officers is a tree on this acre. The power of removing is, therefore, his. It is in him. It is nowhere else.” In Maclay’s account, Vice President Adams played a major role, not by making speeches, but by cajoling wavering senators. “Everybody believed that John Adams was the great converter,” Maclay wrote, and Adams did more than convert. The final vote was ten in favor and ten opposed, so Adams, exercising for the first time his constitutional authority to break a tie, settled the matter in favor of the president’s exclusive removal power. This caused Virginia’s Anti-Federalist William Grayson to lament, “The matter predicted by Mr. Henry is now coming to pass: consolidation is the object of the new Government.”12
For want of a single vote in the Senate, the presidency might have been fundamentally altered. Imagine the secretary of state and other cabinet officials responsible equally to the Senate and
to the president. Although it is difficult to second-guess history, at the very least this would have led the Senate to become more involved in executive matters. Possibly, too, department heads would not have changed with each administration, and this continuity across administrations would naturally have diminished a president’s control over policy issues. That, in turn, might have lessened the politicization of executive matters, or conversely it might have heightened politicization by involving the Senate. All this is conjectural, but this we know: the president’s cabinet, if it existed at all, would not be the same as it is today.13
The removal debate was truly a continuation of the Federal Convention. One-third of the men who had framed the Constitution took part in this unexpected sequel. Half of the Senate’s twenty members were convention veterans, along with eight representatives in the House. Of these eighteen men, twelve thought the president should have exclusive removal powers and six did not. Disagreement of this order was hardly new—most issues at the convention had been contested as well—but the notion that the Constitution had neglected to address an issue with such significant implications was unnerving. Yes, framers and other supporters of the Constitution had readily admitted that the document was not perfect and would probably have to be amended to suit future needs, but they thought they had provided clear enough instructions to start the government rolling, and they had not.14
Key to the problem was the Constitution’s vague term “Advice and Consent,” with no further exposition of what that might mean—how and when advice might be given, how and when consent was to be determined, a more precise stipulation of the extent of the powers the president and the Senate were to share, and some basic guidelines for their implementation. In retrospect, if not at the time, it is not surprising that the lack of clarity would lead to unresolved issues that required clarification.
Less than a month after the removal debate, the “Advice and Consent” clause was again put to the challenge. President Washington and his temporary secretary of war, Henry Knox, a holdover from the confederation government until Congress established a new Department of War, wanted to stabilize relations with Indian nations on the southern borderlands. Spain, which controlled the Mississippi River and was offering arms and trade to southern Indians, now presented a significant impediment to American expansion, so the neutralization of the Creeks, Cherokees, Chickasaws, and Choctaws was a top priority of the new American government. This was difficult, though, because white Americans were steadily encroaching on Indian lands from the east. Negotiations were in order. Treaties needed to be made and upheld, but according to the Constitution the president could only “make Treaties … by and with the Advice and Consent of the Senate.” Today, we assume that the president first concludes a treaty and then brings it to the Senate for “consent.” At the time, though, Washington and anybody else who took the Constitution at face value reasoned that “by and with the Advice … of the Senate” required him to seek senatorial input before or during treaty negotiations, not just afterward.
That is why President Washington and Secretary Knox, on the morning of August 22, 1789, a Saturday, entered the Senate chamber to seek that body’s advice. Indian commissioners were scheduled to meet with Creek leaders on September 15, and before that meeting they needed instructions from those who set policy, the president and the Senate. To this end, Washington composed a letter explaining the recent history of white-Indian relations in the region, followed by an extensive list of specific questions he wished senators to consider. The problem, it seems, was that Creeks had supposedly ceded land in three treaties concluded with Georgia in 1783, 1785, and 1786; whites had then moved onto those lands, but Creek leaders now denied “the validity of the said treaties.” How should the commissioners proceed if they concluded the treaties had been “formed with an inadequate or unauthorized representation of the Creek Nation” or were signed “under circumstances of constraint or unfairness of any sort”? Should they insist on a new treaty, and if so, what concessions should they offer in return for land that was already being claimed by white Georgians? Washington posed a dozen such questions concerning the Creeks and three more that addressed ongoing relations with Cherokees, Chickasaws, and Choctaws.15
Again, we have only one full-throated account of what happened inside the Senate chamber that day, composed of course by William Maclay, whose journal so often mocked the official proceedings. Maclay never came down sternly on Washington, but he refused to accord the president the deference offered by others. He had described the president’s inaugural address in cartoonish terms—“agitated and embarrassed more than ever he was by the leveled cannon or pointed musket,” Washington had supposedly trembled, fidgeted with his fingers, and gestured with an awkward flourish, leaving “an ungainly impression”—and now too Maclay sought to reveal the comic elements in an allegedly staid and somber venue. This time Washington chose not to read his letter but handed it instead to Adams, who read it in his capacity as president of the Senate. According to Maclay, Adams “hurried over the paper” in such a manner that nobody could hear: “Carriages were driving past, and such a noise, I could tell it was something about ‘Indians,’ but was not master of one sentence of it.” Robert Morris asked Adams to read the letter again, and then, immediately, Adams repeated the first item and “put the question: ‘Do you advise and consent, etc.?’ ” When nobody rose to speak, Maclay, the Senate’s designated gadfly, stepped up. If he had not done so, he worried, “we should have these advises and consents ravished, in a degree, from us.”
“The business is new to the Senate,” Maclay said. “It is of importance. It is our duty to inform ourselves as well as possible on the subject. I therefore call for the reading of the treaties and other documents alluded to in the paper before us.” Maclay thought Washington evinced “an aspect of stern displeasure” at his attempt to slow down the process, but the president’s feelings notwithstanding, the senator prevailed, and he and his colleagues began to consider the items point by point. There were so many documents to be read and points to be considered, however, that the Senate decided to send the matter to a committee and take it up at its next session on Monday, two days hence. According to Maclay, that proved too much for Washington. “This defeats every purpose of my coming here,” he supposedly said. He then “cooled by degrees,” but he departed soon thereafter with “a discontented air.”
Washington’s appearance on the Senate floor was a flop by anybody’s standards. Maclay thought it inappropriate for the president “to tread on the necks of the Senate”:
I saw no chance of a fair investigation of subjects while the President of the United States sat there, with his Secretary of War, to support his opinions and overawe the timid and neutral part of the Senate…. He wishes us to see with the eyes and hear with the ears of his Secretary only. The Secretary to advance the premise, the President to draw the conclusions, and to bear down our deliberations with his personal authority and presence. Form alone will be left to us. This will not do with Americans.16
Undoubtedly, Washington was just as displeased with the encounter. He was no stranger to seeking advice, but not in a venue such as this. On countless occasions during the Revolution the commander in chief had convened his war council; never did he take that body’s advice lightly, and often he allowed it to overrule him. Then, however, he was dealing with colleagues who shared both the information he had at his disposal and a certain level of professional expertise relevant to the items under consideration, whereas now members of the Senate were ill informed and not particularly conversant in the matters placed before them. Collectively, they saw themselves as a deliberative body; individually, each valued philosophical correctness and speechifying, sometimes at the expense of taking action. Was this really the right body to issue advice? And even if it were, what was to be gained by the president sitting through the arduous process?
The August 22 convergence of the executive and the legislative branches raised a serious ques
tion about the constitutional role of the Senate: Did it, or did it not, perform the function of an executive council? George Mason, at the Federal Convention and during the ratification debates, had lamented the absence of a separate and independent executive council, and here was a reason why. “Advice and Consent” might be a handy phrase, but this meeting revealed that offering advice and granting consent are two very different activities. If Washington sought only consent, he would have negotiated treaties first and then brought them to the Senate for ratification, as is done today, but the president asked for advice, as the Constitution stipulated, and to give advice, the Senate needed time to study the matter and engage in meaningful deliberations, which could not happen during one brief encounter. In this instance the Senate, with Washington again in attendance, resumed considerations two days later and responded to his questions, affirming his intentions on most but not all of the items, but the incident set a poor precedent. Would senators suspend their normal operations and take a rush course in diplomacy each and every time the executive department wanted to enter into negotiations with an Indian or European nation? How could they be kept apprised of the intricacies of international councils that might well occur on the other side of the Atlantic? Most critically, was this really the proper role of the upper house of the legislature?
