March 26: The Decision Of 1789: Congress, The President & Removal Of Presidential Appointees – Guest Essayists: David Alvis & Flagg Taylor

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Article II Section 2 of the Constitution lays out a very detailed procedure for appointment: “and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the president alone, in the courts of law, or in the heads of departments.” (U.S. II.2.2) While the appointment of executive officers is very important to the administration of government, equally, if not more important, is the issue of who can remove these officers.  Unfortunately, Article II says nothing about the removal of officers.  In fact, there was no discussion of the removal of executive officers in the debates of the Constitutional Convention of 1787. Not until the first Congress was the issue of the removal power debated. Those debates, known commonly today as “the Decision of 1789,” serve as the touchstone for almost all subsequent arguments in American politics over who controls the administration.[1]

The Decision of 1789

Near the beginning of its very first session, Congress proposed to create its first executive departments in order to attend to the critical business facing the infant nation: Treasury, War, and Foreign Affairs. With the Foreign Affairs (later the Department of State) on the table first, James Madison offered a motion that would prove to be the keystone for the discussion: “that there shall be established an executive department, to be denominated the department of foreign affairs; at the head of which there shall be an officer, to be called, the secretary to the department of foreign affairs, who shall be appointed by the president, by and with the advice and consent of the senate; and to be removable by the president…” (emphasis mine). [2]   For the next six days, the First Congress would undertake one of the nation’s most sophisticated and informative constitutional debates over the organization of the executive branch in American history. During the course of their discussion, a total of four positions on the issue of removal evolved:

(1) Impeachment:  impeachment is the only mode of removal recognized by the Constitution and Congress cannot confer any other mode;

(2) Advise and consent: the Constitution vests the removal power jointly in the president and the Senate and Congress cannot confer any other mode;

(3) Congressional delegation: the Constitution is silent or ambiguous about where it vests the removal power, so:

(a) Congress is free to decide but prudently it ought to vest it in the president, or

(b) Congress has some latitude but ought not vest it in the president alone

(4) Executive power theory: the Constitution vests the removal power in the president alone.[3]

Within each position above lies a particular interpretation of the balance of power between the legislative and executive branch that could have fateful consequences for constitutional government in the United States.  The members appeared to clearly understand the ramifications of their position.  They were not just deciding the level of accountability for the Secretary of Foreign Affairs; they were determining whether executive power would lie squarely within the president’s authority or if Congress would control it, at least in part.

According to adherents of the first position, impeachment was the only mode of removal recognized by the Constitution.  This position rested on a literal construction of the Constitution.  Since the Constitution does not mention anything about removal, then there is no removal power.  Impeachment, however, is mentioned in the Constitution.  Consequently, impeachment is the only means by which the removal of an executive officer could be done.  While this argument seems plausible on the surface, the consequences of this position would have dramatically altered the institutional development of the American presidency.  As one scholar puts it:

To have declared the magistracy permanent except for the right of removal by impeachment would necessarily have made the department heads the real executive. An incoming President would have found in office [individuals] whose position, so far as he was concerned, was assured. They would have ideas of their own and connections of their own. Since he could not control them, they would very naturally act in accordance with these ideas in carrying out their duties.[4]

Proponents of this view clearly understood this. They were not just strict constructionists; they had an underlying motive.  Supporters of the impeachment theory feared the concentration or expansion of executive power at the expense of the other branches. As James Jackson of Georgia noted, “If he [the president] has the power of removing and controlling the treasury department, he has the purse strings in his hand; and you only fill the string box, and collect the money of the empire, for his use. The purse and sword will enable him to lay prostrate the liberties of America.”[5] If removal of executive officers were limited to impeachment by Congress, the president would have very little control or influence over the administration.

Proponents of the second position, “advise and consent,” believed that the Constitution vested removal power jointly in the president and the Senate. The removal process should follow the same procedure as that explicitly described in the appointment process under Article II. To appoint an officer of the administration requires the consent of the Senate, so should the removal of an executive officer. As Theodorick Bland put it on the first day of the debate, “The constitution declares that the president and the senate shall appoint, and it naturally follows, that the power which appoints shall remove also.”[6] After all, aren’t the powers of appointing and removing related, just like hiring and firing?  Like the impeachment position, proponents of this position also had a particular view of the balance of powers between Congress and the president. The president and Congress share in the duty of administration because the execution of law is ministerial to the process of law making. Elbridge Gerry of Massachusetts elaborated this view for the benefit of other members:

We [Congress] have the power to establish offices by law; we can declare the duties of the officer; these duties are what the legislature directs, not the president; the officer is bound by law to perform these duties… Suppose an officer discharges his duty as the law directs, yet the president will remove him; he will be guided by some other criterion; perhaps the officer is not good natured enough…because he is so unfortunate as not to be so good a dancer, as he is a worthy officer, he must be removed.[7]

For Gerry and others this arrangement made sense in light of their view that the administration of the law is inseparable from the creation of law. Administering the law is really a joint responsibility of the president and Congress since it is the president’s task to execute the law and the legislature’s responsibility to see that its laws are faithfully executed. Consequently, administrators should not be removed in the same way they are appointed — with Congressional approval.

Other members of the First Congress agreed that the legislature played a central role when it comes to the administration of law, but they took a different position over the removal power process.  Known as the “congressional delegation position,” this group argued that the Constitution’s silence over the vesting of the removal power was really an invitation to give Congress a discretionary authority over the removal power. Congress could either retain the removal authority solely for itself or it could vest this power wherever it pleases. Roger Sherman of Connecticut explained the rationale behind this position: “As the officer is the mere creature of the legislature, we may form it under such regulations as we please, with such powers and duration as we think good policy require; we may say he shall hold his office during good behavior, or that he shall be annually elected; we may say he shall be displaced for neglect of duty, and point out how he should be convicted of it—without calling upon the president or senate.”[8] What Congress creates, Congress can take away.  Administering the law, moreover, is not really a shared responsibility with the president; it is ultimately the responsibility of Congress.  Proponents of this position were actually divided into two groups when it came to deciding where to vest the removal power over the secretary of Foreign Affairs.  Some thought Congress should retain the power while others thought it would be more convenient to permit the president to exercise the power in this particular situation.  In either case, however, their fundamental assumption was the same: the power of removal fundamentally belongs to Congress.

Finally, one group of representatives argued that the Constitution vested the removal power in the president alone. This position is often labeled “the executive power theory.”[9]  Elected by the people, the president is alone accountable to the public for the execution of the law. As James Madison put it, “If the president should possess alone the power of removal from office, those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; the lowest officers, the middle grade, and the highest, will depend, as they ought, on the president, and the president on the community. The chain of dependence therefore terminates in the supreme body, namely, in the people.”[10] According to this view, Congress has the power to make law but it does not have the authority to interfere with the execution of law.  If Congress participated in the removal process either by exercising the removal power itself or by requiring its advice and consent to removal, the legislature would have overstepped its bounds within the separation of powers. As the vesting clause of Article II states: “The executive power shall be vested in a president of the United States of America.” True, as the proponents of the advice and consent position would maintain, the Constitution does occasionally blend the powers as when it includes the Senate in the appointment process.  But those occasions are really exceptions to the rule that ought to be construed strictly where the Constitution makes the role of Congress explicit.[11] Because the Constitution is silent on the removal power, it should be assumed that this power belongs to the president alone. Asked in the House whether he thought removal was executive “by nature,” Madison responded: “I conceive that if any power whatsoever is in its nature executive it is the power of appointing, overseeing and controlling those who executive the laws.  If the Constitution had not qualified the power of the president in appointing to office, by associating the senate with him in that business, would it not be clear that he would have the right by virtue of his executive power to make such an appointment.”[12]

Scholars who have looked to the debates of the First Congress for a conclusive statement on the issue of the removal power have unfortunately been disappointed.  To avoid a stalemate over the legislation, the House carefully developed a compromise that would give the president power to remove in effect while leaving the constitutional logic for vesting this power in the president unclear – Congressional delegation or inherent executive power? This clever parliamentary maneuver successfully garnered enough votes to get the bill through Congress, but it did not resolve the issue of the removal power in terms of principle.

At stake in this struggle over removal power was more than the interior design of a particular department; this debate would shape the way in which the two elected branches of the federal government would relate to one another under the system of the separation of powers. For those who favored a significant role for Congress in the removal power, the concern was to at least check, if not entirely control the executive’s enforcement of law.  Supporters in this camp believed that Congress had a major stake in law enforcement because the execution of law should complement the intention of the lawmaker.   Unchecked, the executive might be able to rewrite the law merely by controlling how the law was enforced.  Supporters of the executive power theory on the other hand believed that execution of law was entrusted solely to the discretion of the executive.  If the enforcement of law deviated from the intentions of certain lawmakers, it was the task of either the Courts or voters to correct the interpretation.  While no one member of the House offered a compromise that satisfied all parties, it is clear that any mutual accommodation between the pro-Congress and pro-executive sides of this issue would require an arrangement whereby Congress could prevent the executive from contravening the clear intent of the law while at the same time recognizing the independent discretionary authority of the president.  Of course, the simple solution would be to make very specific laws, but this is easier said than done particularly in a very complex world of regulatory administration.  Given that most laws do not execute themselves, administration often requires discretionary choices.  How to preserve the balance of powers in light of the growing complexity of federal administration remains an unsettled question.

David Alvis is an Associate Professor of Government at Wofford College. He has published two books including The Removal Power Controversy, 1789-2010 from University of Kansas Press (with Jeremy Bailey and Flagg Taylor) and Statesmanship and Progressive Reform from Palgrave MacMillan Press (with Jason R Jividen), along with numerous articles on American politics and political theory. 

Flagg Taylor is Associate Professor of Political Science at Skidmore College.

[1] This essay is adapted from our book: The Contested Removal Power, 1789–2010 by J. David Alvis,. Jeremy D. Bailey, and F. Flagg Taylor IV. (Lawrence, University. Press of Kansas, 2013).

[2] De Pauw, Linda Grant, Charlene Bangs Bickford, Kenneth R. Bowling, and Helen E. Veit. 1972. Documentary history of the First Federal Congress of the United States of America, March 4, 1789-March 3, 1791. Baltimore: Johns Hopkins University Press, 726. (DHFFC)

[3] See Saikrishna Prakash, “New Light on the Decision of 1789,” 91 Cornell L. Rev. 1021 (2006)

[4]C. Thach, Jr., The Creation of the Presidency, 17751789 (Baltimore, Md.: Johns Hopkins University Press, 1969)

[5] Ibid., 1002.

[6] DHFFC, Debates I, 737. Bland made a motion on May 19 to add “by and with the advice and consent of the senate” which was defeated. See Ibid., 738.

[7] DHFFC, Debates II ,1022-1023.

[8] Ibid., 917.

[9] Prakash

[10] Ibid., 925.

[11] DHFFC – Debates II, 869

[12] ibid., 868

 

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1 reply
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    Very interesting, educational essay.

    As with many of the Founder’s debates, history has taught us that the concerns they debated have many times come to fruition. We’ve seen Presidents remove officers who are capable and execute the laws as written. Others employ officers who willingly undermine, pervert, or expand laws from their original intent.

    Conversely it is easy to envision a Legislature who exercise undue oversight thus rendering the Executive a mere figurehead and puppet of the Legislature.

    As noted in the Essay, the 1st Congress understood they were setting precedent that would have far reaching consequences. Did the land on the perfect answer? Probably not. But as many of the issues they face, the Founder’s final decision was and is far better than all but perhaps the perfect.

    Reply

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