Mr. President (25 page)

However powerful the office of the president might become, Washington had no official duties during his early months in office. The primary function of the chief executive was to execute the laws, but Congress had yet to pass any legislation. The president was also supposed to appoint judges, but Congress hadn’t created any courts, so there were no judgeships to fill and of course no federal criminals to pardon. The president was empowered to “require the Opinion, in writing, of the principal Officer in each of the executive Departments,” but there were no such departments and hence no such officers. Theoretically, Washington could negotiate a treaty, but he would have to do so without any executive infrastructure and “with the Advice and Consent of the Senate,” whatever that might entail. There were only two powers he could exercise on his own: he could receive ambassadors if some should arrive at his doorstep, and as commander in chief he could issue orders to the 682 federal troops scattered in six western outposts
and the arsenals at West Point and Springfield. This was the extent of his discretionary authority.
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While there was little of substance to command his attention, Washington busied himself with establishing presidential protocol “in all matters of business & etiquette.” Fully appreciating the symbolic importance of his office, he tried to discover the proper balance between “too free an intercourse and too much familiarity” on the one hand and “an ostentatious show” of monarchical detachment on the other. How, and how often, should he make himself accessible to the public, to members of Congress, or to personal friends? Should he participate in “great entertainments” on national holidays, and if so, which ones? Would it be appropriate to tour the country during recesses of Congress? “Many things which appear of little importance in themselves and at the beginning, may have great and durable consequences from their having been established at the commencement of a new general Government,” he believed. Whatever he did would establish a precedent; collectively, these precedents would set the tone of the presidential office and help define the relationship between the people and their government. Washington’s first job as president, then, was to establish what it meant to be a president. He solicited advice from James Madison, Alexander Hamilton, John Adams, John Jay, and Robert R. Livingston, and in the end he developed “a discriminating medium,” as he called it, that suited him well. Yes, he would meet the public, but only at specified times and in appropriate venues. He would be the people’s friend, but he would also “preserve the dignity & respect … due to the first Magistrate.”
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While Washington established presidential protocol and considered applications for posts that did not yet exist, Congress alone conducted the pressing business of government. First on its agenda was raising money for operations, without which all else would be futile. For over two months it debated a list of import duties, each of which angered some particular constituency. Also, to placate Anti-Federalists, some congressmen wanted to develop a Bill of Rights; if Congress failed to introduce any amendments to the new Constitution, state conventions would likely do so instead, and these might attempt to tinker with the body of the document. Further, it fell to Congress to establish the remainder of the federal edifice. Neither the executive branch (save for the president) nor the judicial branch would even exist until the legislative
branch created it. As David Humphreys and Washington stated in their first draft of the inaugural address, Congress was “the first wheel of the government—a wheel which communicates motion to all the rest.”
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In the process of establishing the various executive departments, Congress hotly debated the balance of power between the legislative and the executive branches, a prominent issue at the Federal Convention and the subject of some controversy during the ratification debates. At issue was the “Advice and Consent” phrase in the second paragraph of Article II, Section 2 of the Constitution. The president was empowered to “nominate” major public officials—these included ambassadors, Supreme Court justices, and “other public Ministers and Consuls,” commonly understood to include the heads of executive departments, but these would not become official appointments until approved by the Senate. This compromise, pushed by the Committee of Eleven near the end of the Federal Convention, failed to resolve a major question: Who, if anyone, held the power of
removal
? Whoever possessed authority to dismiss an executive officer could effectively control that person’s actions, yet the framers, in a rush to complete their work, had entirely overlooked the issue.

On June 16, a Tuesday, the House of Representatives took up a committee’s draft for the creation of the Department of Foreign Affairs, to be headed by a secretary of foreign affairs who would be “removable from office by the President of the United States.” This phrase, which followed a list of the secretary’s duties, excited far more interest than the duties themselves, and Alexander White of Virginia moved to strike it out. White and several others explained why. “If the Senate are associated with the President in the appointment, they ought also to be associated in the dismission from office,” they reasoned, and Congress therefore had “no right to deprive the Senate of their constitutional prerogative.” This was not only constitutional law but also sound policy. Senators, with their long terms, were intended to provide stability; they would prevent a president from arbitrarily removing officers who were adequately performing their jobs. “A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the Government, as might be expected if he were the sole disposer of offices.”

Some speakers also argued that the Constitution
did
provide for
the dismissal of federal officers: “The President, Vice President, and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Although this seemed to compete with the notion that the Senate and the president, without the House, would share the power of removal, at least it kept the power out of the hands of the president alone. At first glance, the impeachment argument appeared sound, for “all civil Officers” would certainly include the secretary of foreign affairs and other heads of departments that Congress was about to create, but in fact it carried little weight. The standards for impeachment were strict, while it was easily argued that officers should sometimes be removed for less heinous offenses. Inability to perform a job adequately should be sufficient grounds for removal, although not impeachment. So the question remained: Who, exactly, would remove the heads of executive departments, the president alone or the president with the advice and consent of the Senate?
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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.”
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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.”
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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.
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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.”
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