The First Congress was undoubtedly influenced in its decision by the exalted
character of the President, and the probability that the succession for a long course of
years would devolve on the revolutionary patriots who constituted the supports of
Washington. Mr. Madison said, in the debate on the motion to strike out the words "to
be removable by the President " in the act creating the Secretary of Foreign Affairs,
that "If the Constitution is silent, and it is a power the Legislature have a right
to confer, it will appear to the world, if we strike out the clause, as if we doubted
the propriety of vesting it in the President of the United States." Mr. Smith,
member from South Carolina, observed, "Perhaps gentlemen are so much dazzled with the
splendor of the virtues of the President as not to be able to see into futurity. The
framers of the Constitution did not confine their views to the first person who was looked
up to, to fill the Presidential chair."
The prudence of the several incumbents of
the Presidency to, and including, John Quincy Adams, in exercising the power of removal,
satisfied the country with the decision thus made. The instance during the administration
of Mr. Adams, of the attempted removal of Jonathan Thompson, Collector of this port, is
well remembered. A Committee consisting of important citizens of New York, headed by
Charles King, went to Washington for that object. Mr. Adams expressed his willingness to
gratify them, and they were about leaving. "But, gentlemen," said he, "you
have not mentioned the objections you have to Mr. Thompson." "Why," said
Mr. King, "he is against your Administration." Mr. Adams, finding there was no
other objection, answered, that Mr. Thompson had a perfect right to his own opinion; and
if there were no other reasons he should not be removed.
On the inauguration of General Jackson
the doctrine that to the victors belong the spoils was announced, and in one year from his
inauguration on the 4th of March, 1829, the removals amounted to eight in the
diplomatic corps, thirty-six in the Executive departments, and one hundred and ninety-nine
in important civil posts, whereas during the eight years of Washingtons
administration only nine officers in the whole had been displaced. "This
extraordinary change," said Judge Story, "has awakened general attention and
brought back the whole controversy with regard to the Executive power of removal to a
severe scrutiny. Many of the most eminent statesmen in the country," he continues,
"have expressed a deliberate opinion that it is utterly indefensible, and that the
only sound interpretation of the Constitution is that avowed upon its adoption; that is to
say, that the power of removal belongs to the appointing power" meaning the
Senate conjointly with the President.
The Constitution expressly provides that
the appointment of all inferior officers may be devolved upon the President alone, the
Heads of Departments, or the Supreme Court. The appointment of all officers below the
grade of the Heads of Department may thus be provided for by Congress, which might confer
the authority on the Heads of Departments and the Supreme Court alone as to all officers
respectively under them. This constitutional provision could not be satisfied if the
President might remove such appointees at his pleasure. As to all such appointments, the
power of removal would follow the appointing power, for otherwise perpetual conflict might
exist between the two authorities, one insisting upon appointing, the other upon removing.
Here, then, it must be admitted, is an exception which Congress may make to the
universality of the rule authorizing removals, claimed as appertaining to the Presidential
office. The character of this power, to be exercised by the Heads of Departments under the
Constitution, furnishes a strong argument against the position that they themselves may be
displaced by the President. The power of the President over them expressed in the
Constitution is that "he may require the opinion in writing of the principal officer
in each of the Executive departments upon any subject relating to the duties of their
respective offices." The expression of this power would be wholly unnecessary if the
Constitution, by necessary implication, gave the President alone power to remove these
very officers, for this would have embraced entire control over their action. The Heads of
Departments have duties to perform most intimately connected with Congress. Treaties are
to be made by and with the advice, and subsequently by and with the consent
of the Senate, provided two-thirds of those present concur. The Secretary of State, whose
duties relate chiefly to foreign affairs, represents both the President and the Senate in
this duty. The Secretary of the Treasury makes his report directly to Congress, not to the
President. This is done to enable Congress to employ the proper means to meet the public
expenditure. The Secretary of War is equally the representative of the Legislative and of
the Executive Department. The power to declare war is wholly Legislative under our
Constitution, differing in that respect from the British, under which it is wholly
Executive. The controversy between Congress and the President with respect to the mode of
tying up the ends of the war, in which he seeks to defeat their will constitutionally
expressedfor in a civil war the terms of peace are fixed by Congress in its
discretionproves the necessity of exempting the Secretary of War from the
Presidents power of removal, except with the advice and consent of the Senate. If
Congress may fix the tenure of any of these executive offices in a way to prevent the
exercise by the President of the power of removal, it puts an end to the implication
claimed in his behalf.
The power claimed for the President would
enable him to defeat the action of the Senate in the matter of appointments, and thus in
effect destroy the constitutional provision by which it is required. On the adjournment of
the Senate the President, by removing the person appointed on their advice and consent,
might substitute another and an unsuitable personone to whose appointment such
advice and consent had been refused. If to this it is answered, that the President would
subject himself to impeachment, then we say that the offense committed more certainly
deserves this remedy.
The theory that removal follow the
appointing power, or if it do not, that Congress which creates may fix the precise tenure
of office when not otherwise specified in the Constitution, reconciles provisions which on
the opposite doctrine must be deemed utterly inconsistent. The power conferred on the
President in terms to issue commissions in case of vacancy happening during the recess
of the Senate is not in harmony with power claimed as implied that he may make and
fill a vacancy at any time. The power conferred on Congress to devolve the appointment of
inferior officers on the President alone, or the Supreme Court, or the Heads of
Departments, can not be exercised consistently with the broad ground claimed for the
President, that he, independently of Congress, may remove all executive officers even if
their appointment and removal be devolved by Congress on the Heads of Departments alone.
The removability of executive officers by
the Chief Executive derives its origin from the peculiarities of the British Constitution.
It has been transplanted here not by express grant but by implication against the popular
branch of our Government, and in favor of one against which our jealousies were aroused.
In England the Queen has an inheritable estate in her office, which she needs to support
by extraordinary power. But this power is allowed to her only on the condition that the
great offices in the realm shall be filled in complete sub-serviency to the principles of
the Parliamentary majority. When in a minority, the ministry resign. The President expects
to have the benefit of the Queens prerogative, without submitting to the obligation
which the Queen is obliged to concede of a ministry harmonious with Parliament. The denial
of this obligation in England would produce a revolution. It can scarcely be expected that
a bold defiance of the clearly and legally expressed will of Congress can go unredressed
under our Government.