Article II is relatively brief, and, as shown, the enumerated powers are often ill-defined. In part, this is due, as Hamilton wrote, to the impossibility of clearly laying out every conceivable exercise of executive power. Flexibility was needed to accommodate varied and unpredictable events, especially because Congress would be a part-time legislature while governing was constant. As Chief Justice John Marshall noted in a different context in McCulloch v. Maryland in 1819, “it is a constitution we are expounding,” not a legal code. Constitutional text and historical sources provide a starting point to sort out the scope and nature of the President’s office, but practical experience ultimately will be, in Hamilton’s phrasing in The Federalist No. 6, “the least fallible guide…for an answer to these inquiries.” It is a functional, perhaps even more than a textual, project.
President Washington sets the tone early about the Senate’s “advice-and-consent” role
The greater significance of political experience over political theory has been particularly evident in fleshing out specific aspects of the President’s powers under the Constitution. One such lesson of teaching-by-doing was when President Washington unilaterally issued his Neutrality Proclamation concerning the Anglo-French Naval War in 1793, examined previously. Another occurred even earlier. As already discussed, the Constitution’s text vests the executive power entirely in one President, subject only to specified limitations. Some proponents of the multiple-executive theory claimed that Article II envisioned the “governor-and-council” model of shared executive powers familiar from the colonial charters and early state constitutions. They pointed out that the President’s power to make treaties and the power to appoint officers of the United States must be exercised “by and with the Advice and Consent of the Senate.”
That argument was dealt a death-blow by President Washington. Washington was not the type of person content to play a merely ceremonial role as presiding officer of a board of councilors. He favored a vigorous presidency, and it was clear that, while he usually listened carefully to his subordinates, he made the decisions. The Senate-as-council role was soon buried when Washington, after one soured attempt at consultation before treaty negotiations in 1789, refused to set foot in the building again. Thereafter, the Senate’s role was to consent (or not), but not to advise, at least not as a collegial body in a formal setting. Henceforth, the President would make the treaty and would nominate the officers; the Senate’s formal role would be entirely reactive. As Hamilton would declare four years later in the Pacificus essays, the textual exceptions and qualifications to such inherently executive powers must be narrow.
The President’s power to fire subordinates at will
Washington’s presidency helped define the ambiguous contours of the president’s powers in other instances, as well, and it set the executive branch firmly on the course of a unitary executive. The debate over the nature of executive power frequently and over an extended time has occurred in the context of the President’s power to remove federal officers, the very issue in Trump v. Slaughter. That power is not specifically mentioned in the Constitution, so its origin and scope have to be determined from other sources. The President’s power to remove federal officers was raised briefly in The Federalist No. 77, where Hamilton inferred such a power as a necessary corollary to the President’s appointment power. That analogy seemed to make such a removal subject to Senate consent, in parallel with the appointment process. The language he used was sufficiently cryptic, however, to leave unresolved whether the President could act alone or needed Senate approval for a removal.
Fortunately, there is an abundance of other essays, letters, and records which show the contemporary understanding that a unitary executive structure necessarily incorporates the chief executive’s power to control subordinates. That control extends to removing them without involvement by the other branches of government. The framers of the Constitution clearly intended to reject the weak executive models of the early state constitutions set up as a reaction against the perceived abuses by King George III. Even Thomas Jefferson, perhaps moved by holding a weak executive position himself as governor under the Virginia constitution, wrote already in 1780 that the powers to appoint and remove executive officers are inherent in being chief executive, and that the power to remove follows from the power to appoint.
However, the ultimate resolution of what is essentially a matter of practical governance came through constitutional custom evolving over several generations, beginning with the practice institutionalized by the First Congress. The actions of that body are considered significant in determining what the framers of the Constitution understood the document to mean because many members of that body had been involved in the process of adopting the charter. Supreme Court Justice Joseph Story made that point in Martin v. Hunter’s Lessee in 1816, noting the importance of the First Congress “composed, as it was, not only of men of great learning and ability, but of men who had acted a principal part in framing, supporting, or opposing that constitution.” Likewise, the actions of the Washington administration are given great significance because George Washington was fully aware of his role as first president in setting precedents of both power and limits thereon in the operation of the executive branch. Pierce Butler of South Carolina spoke for many Americans when he observed at the Philadelphia Convention that the attendees “cast their eyes towards General Washington as President; and shaped their Ideas of the Powers to be given to a President, by their opinions of his Virtue.”
The First Congress acknowledges the unitary executive structure and the President’s inherent power to fire subordinates at will in the “Decision of 1789”
A controversy over the President’s removal power arose in 1789 in the formation of the Cabinet, specifically the Department of Foreign Affairs (now Department of State). Would the President be able to remove the Secretary without Senate consent? It was proposed in the House of Representatives that Congress grant the President power to remove the Secretary at will. The concept of allowing the President to remove the Secretary at his discretion had significant support in the House. However, some supporters of strong executive power quickly questioned the proposed statute’s wording because it addressed the removal power as a congressional authorization, which then also meant that Congress could limit, or even deny, the President’s power. What Congress grants, Congress can take away.
Madison, at that time still a supporter of executive power, urged that the President had that power inherently, derived from the “executive power” clause. He declared, “I conceive that if any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws.” From that, he concluded, the President’s executive power to remove at will followed.
Others opposed the statute because they supported the requirement for congressional creation of any removal power but did not want to grant that power to the President, unless it was subject to Senatorial consent, akin to the Senate’s role in appointments. A couple opposed the entire concept of a presidential removal power as being inconsistent with the impeachment process set out for removal of federal civil officers in the Constitution. The matter was resolved by artful language in the statute which implied that the President had the inherent power to remove the secretary of state without expressly acknowledging that.
When the proposal reached the Senate, it seems to have had a more difficult time. Until 1794, the Senate’s deliberations, akin to those of the earlier Continental Congress, were not public, so no clear record, other than the perfunctory Senate Journal, exists of the debate over the proposed statute. However, the proposal was approved by the vote of Vice-President Adams, which means that the vote of the Senators was a tie.
This “Decision of 1789” came to be viewed as supporting the President’s power to remove executive officers at will. President Washington saw this as an “indispensable duty,” and his successors unanimously voiced similar sentiments. Indeed, Jefferson, often portrayed as an opponent of a strong executive—undeservedly, if one looks at his purchase of Louisiana and his unilateral military ventures against North African Muslim slavers—-removed more federal officials from their positions than any President before Andrew Jackson. Even the Supreme Court acknowledged the removal power as an inherent aspect of the President’s executive power, albeit not until a half-century later in Ex parte Hennen (1839).
Andrew Jackson and the firing of Treasury Secretary William Duane
While this was a victory for the unitary executive structure, there remained ambiguities. The next major controversy arose when President Andrew Jackson fired his Secretary of the Treasury William Duane in 1833 for refusing Jackson’s order to remove government deposits from the Second Bank of the United States. Jackson’s opponents in the Whig Party-controlled Senate argued that the Secretary of the Treasury carried out a function, control of public funds (the “power of the purse”), which the Constitution specifically vests in Congress. Control over the fisc had been a centuries-long struggle between King and Parliament in England before the latter emerged politically victorious in the late 17thcentury. The same issue had been a constant source of friction in the colonies between the royal governors and the local assemblies. Indeed, the Revolutionary War-era slogan “No taxation without representation” was about the people’s representatives having control over taxing the citizenry and the spending of public funds.
Even Hamilton, when Secretary of the Treasury, had fancied himself a sort of independent minister who bridged the executive and legislative branches. The Secretary of State, whose removal was at issue in the earlier debate, was in a different constitutional position, in that he performed a core executive function of conducting foreign policy. Because of that difference, the Whigs claimed, the First Congress had effectively placed the operation of the Treasury Department under the control of Congress, although the statute which created that department also contained similar language about removal as those laws which set up the Departments of Foreign Affairs and War.
The Senate voted to censure Jackson for firing Duane and removing the government funds from the Bank, resolving that Jackson had acted without authority under the Constitution or from Congress. Jackson protested that, unlike impeachment, censure of the President was not a power the Constitution conferred on Congress. On the controversy’s substance, Jackson argued in a manner similar to Hamilton in the Pacificus letters that the appointment and removal powers were both executive powers which, unless expressly limited by the Constitution, belonged to the President as head of the unitary executive branch.
The idea of inherent executive power, subject only to narrow restraints, was certainly congenial to Jackson, a man whose character flaws did not include reticence to act—with or without legal authority. In this instance, though, Jackson did not walk alone, but in the footsteps of illustrious predecessors, most of whom had been there from the creation of the executive branch. Jackson justifiably insisted that such removals had been the uninterrupted practice since the Washington administration. The crucial fact was the nature of the Secretary’s position as his subordinate in the executive branch, not the nature of the Secretary’s duties.
The censure was revoked in 1837 when the Jacksonian Democrats captured the Senate. In any event, Duane remained fired, the government funds stayed removed from the Bank, and Jackson became an avid practitioner of the patronage system of firing federal office holders and replacing them en masse with his own loyalists as a reward for their political activism.
Jackson won the battle with the Senate over the President’s power to fire officials in the executive branch and the bigger issue of the unitary nature of the executive branch. Even the Whig Senator Daniel Webster, one of Jackson’s staunchest and most respected adversaries, eventually threw up his hands about the controversy. Speaking years later, in 1850, Webster ruefully allowed, “[S]ince the practice has become a settled practice, since every Administration has indulged in it, and since it must now be considered, as the legal construction of the Constitution, that it is one of the powers of the President to remove incumbents from offices which they hold, it follows that this power…thus legally vested in the President, must be exercised by him as independently of our control as any other power that is to be exercised by him under the Constitution.” Echoing Hamilton’s support of the unitary executive in The Federalist No. 70, Webster remarked that this outcome was grounded in the Constitution’s deliberate separation of governing powers, a core principle of which was to provide accountability for political decisions. “If every department acts within its own power, it takes the responsibility belonging to its power. But if the power [sic] of two or more departments are mixed up irregularly and jumbled together, there is no just responsibility upon anybody.”
The next post in this series will examine further the historical evolution of the unitary executive structure, looking at Congress’s ultimately unsuccessful attempt to restrict the President’s removal power through the Tenure of Office Act of 1867