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The heads of these departments, in addition to the duties specially assigned them, were intended to constitute a council, to be consulted by the president whenever he thought proper ; and indeed by the constitution, the president was authorized to require the opinions in writing of the principal officers in the executive departments, on subjects relating to the duties of their offices. These duties were designated in the acts establishing the departments themselves. In framing these acts, it became an important subject of inquiry, in what manner, or by whom, these important officers, could be removed from office. This was a question as new as it was important, and was applicable to all other officers of executive appointment. It depended on the construction of the constitution itself, and occasioned long and learned debates, as well as great divisions in both branches of the national legislature. As the doors of the senate were not open, the debates of that body, on this and other questions, were not known. Some of the members in the house of representatives, were of opinion that they could not be removed, without impeachment. The principal question, however, on which congress were divided, was, whether they were removable by the president alone, or by the president in concurrence with the senate. A majority, however, in both houses, decided, that this power was in the president alone. In the house the majority in favor of this construction was twelve.
When the question first came before the senate, on the bill establishing the department of foreign affairs, some of the members were absent, and that body was equally divided, and the casting vote was given by the vice-president. On a subsequent bill, there was a majority of two in favor of the same construction. That it might not be considered a grant of power by congress, the law was so worded, as to imply a constitutional power, already existing in the president; the expressions being, " that whenever the secretary shall be removed by the president of the United States,” &c. In opposition to this clause, it was urged in the first place, that it was improper for the legislature, in this manner, to give a construction to the constitution. That it should
be left with the judiciary, another co-ordinate department of the government ; or it should remain to be decided by the president and senate, whenever the occasion occurred, in which a decision should be necessary. In the second place it was said that this great and important power, by a fair construction of the constitution, was in the president and senate. It was an established principle, its opponents said, that the power of removal necessarily rested with those to whom was entrusted the power of appointment, except when there was an express restriction, as in the case of the judges, who held their offices during good behavior. That the senate had, in effect, an equal voice with the president, in the appointment of officers, when their appointment was not by law vested in the president alone, or in some other department of the government; as no appointment could be made without the assent of that body. It was further said, that the constitution being silent on the question, it was contrary to sound policy, as well as inconsistent with the principles of a free government, to give, by construction, such power to any one individual. That it was liable to great abuses, and would render officers entirely dependent on the will, perhaps the whim and caprice of one man. Whatever confidence might be placed in the chief magistrate, then at the head of the government, equal confidence could not be expected in his successors. That a concurrence of the senate was as necessary and proper, in the removal of a person from office, as in his appointment.
The advocates for this clause in the bill, agreed in its importance, and considered the genius and character of the government itself, in no small degree, to depend upon it. In ordinary cases, they said, constitutional questions might be left with the judiciary department without a legislative expression of opinion ; but that this one was of no ordinary character or magnitude; one, which it would be difficult to bring properly before the courts. It was one, on which it was highly proper that the legislature, particularly the house of representatives, should express an opinion. This opinion, if assented to by the president and senate, would put the question at rest. That if left
to be settled at a future time by the president and senate, a difference might arise between them, which would create infinite difficulties and delays, in the administration of the government. They also contended, that by a fair construction of the constitution, this power was in the president alone. It was a political axiom, they said, not to be disputed, that the legislative, executive and judicial powers of government, should be kept distinct, and blended as little as possible. That by the constitution, the executive power was vested in the president; and the association of the senate, in one executive function, was an exception to the general principle, and that exceptions to general rules were taken strictly. So by the constitution, all legislative power was vested in congress; and the qualified negative given to the president was only a special restriction to this general power.
The power of appointment, they also said, was substantially in the president alone. He was authorized to nominate, and by and with the advice and consent of the senate, to appoint. The president was the agent, and the senate had only a negative on
Other parts of the constitution were referred to in support of this construction. The president, they said, was directed to take care, that the laws be faithfully executed; and it must have been the intention of the framers of the new system, to give him power, to an extent necessary for the accomplishment of that object. If an officer, once appointed, was not to depend on the president alone for his official existence, it would be difficult to see how he could be answerable for a faithful execution of the laws.
It was urged with great force also, that if the power of removal was divided between the president and senate, responsibility would be destroyed, and the benefits expected from its exercise, in a great measure, lost. Secrecy and despatch were often necessary to secure and preserve the public interest. Facts relative to the mal-conduct of an officer, might come to the knowledge of the president, rendering an immediate removal indispensable ; and the delay in convening the senate, might be fatal to the best interests of the community. In answer to the
objection, that this power would be liable to great abuse, in the hands of an individual, it was said, that all power wherever placed, was liable to this objection; but that the mode of choosing the chief magistrate would ensure the election of an individual of integrity as well as talents; and that the tenure of office would be as secure, and the liberties of the people as safe, in the hands of a president thus chosen, as with the president and senate.
With respect to removals, from whim, caprice or any unworthy motives, it was alleged, that sufficient checks were provided against such a wanton abuse of this power. That the principal if not the only inducement for the removal of a meritorious officer, would be, to place some favorite in his room. The president, indeed, might remove, but he could not supply the vacancy without the assent of the senate. The nomination of a successor, would elicit inquiry in that body, and produce a rejection of the favorite nominated to fill the vacancy.
It was also stated by some members, particularly by Mr. Lawrence and Mr. Madison, that for such wanton abuse of power, the president himself would be liable to impeachment and remo: val from office.
“ If the president,” said Mr. Lawrence, “ abuse his trust, will he escape the popular censure, when the period which terminates his elevation arrives ? And would he not be liable to impeachment for displacing a worthy and able man, who enjoyed the confidence of the people ?”
“ The danger, then,” Mr. Madison observed, “consists in this, the president can displace from office, a man whose merits require that he should be continued in it. What will be the motives which the president can feel for such abuse of his power, and the restraints to operate to prevent it? In the first place, he, will be impeachable by this house, before the senate, for such an act of mal-administration ; for I contend, that the wanton removal of meritorious officers, would subject him to impeachment and removal from his own high trust."*
Congressional Register, vol. 1, p. 503.
This decision of a great constitutional question, has been acquiesced in, and its consequences has been of greater importance than almost any other, since the establishment of the new government. From the manner in which this power has been exercised, it has given a tone and character to the executive branch of the government, not contemplated, it is believed, by the framers of the constitution, or by those who composed the first congress under it. It has greatly increased the influence and patronage of the president, and in no small degree made him the center, around which the other branches of the government revolve.
The experience of a few years has evinced that the supposed checks to executive influence, have, in many instances, been too feeble and inefficient, nor can it be expected, they will be more efficacious in future. While so many members of the national legislature are themselves candidates for office, the balance of power will incline to the side of the executive.
The constitution is not only silent on the subject, but it does not appear from the proceedings of the general convention, that the question was agitated in that body. The members of that convention, who were members of the house of representatives, differed in opinion on this point. Mr. Madison and Mr. Baldwin supported the construction finally adopted by congress, and Mr. Sherman and Mr. Gerry opposed it. The opinion of Mr. Hamilton, as given in the Federalist, was the same as that of the two latter gentlemen. The author of number seventy seven, (Mr. Hamilton) says, “it has been mentioned, as one of the advantages to be expected from the co-operation of the senate, in the business of appointments, that it would contribute to the stability of the administration.
“ The consent of that body would be necessary to displace, as well as to appoint. A change of the chief magistrate, therefore, would not occasion so vehement or general a revolution in the officers of the government, as might be expected, if he were the sole disposer of offices. When a man, in any situation, had given satisfactory evidence of his fitness for it, a new president