Sunday, October 04, 2009

"It is not a vote!"

As you know, the nomination by the President of the United States of executive officers is subject to confirmation by the Senate. Article II, Section 2 provides in relevant part:
He [the president] . . . 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.

The converse, however, is not the case. Presidents routinely terminate executive officers (or pressure them into resigning) on their own authority. They do not seek or obtain the consent of the Senate to do so, and no one expects them to.

It is one of the strange facts of American constitutional history that the constitutionality of this practice is entirely unclear. In fact, the Constitution does not address whether executive removals require Senate consent or not. It might certainly be logical to suppose that the opposite result is correct: if Senate confirmation is required for appointment, then Senate confirmation for removal is likewise required. Ironically, this was precisely the position taken by that champion of executive power, Alexander Hamilton, in Federalist 77:
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 violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration, will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the government.

Current practice is sanctioned by historical precedent. The very first Congress faced and debated the question. Standard histories note with a good deal of irony that, in the House, it was Representative James Madison who spearheaded the forces that successfully argued that removal did not require Senate consent.

What I had not focused on, however, was the Senate itself, and how close the result was there. In Empire of Liberty: A History of the Early Republic, 1789-1815, Gordon S. Wood, citing the Journal of Senator William Maclay, points out that the vote was razor thin. Maclay reports that the Senate vote, held July 16, 1789, was a tie; Vice President John Adams then cast the deciding vote in favor of removal without Senate consent:
After all the arguments were ended and the question taken the Senate was ten to ten, and the Vice-President with joy cried out, “It is not a vote!” without giving himself time to declare the division of the House and give his vote in order.

Prof. Wood comments:
The consequences of such a close vote were immense: on it turned the future nature of the presidency. Indeed, as Madison noted in the House, the Congress's decisions on this issue of removal “will become the permanent exposition of the Constitution; and on a permanent exposition of the Constitution will depend the genius will depend the genius and character of the whole government.” If the Senate had been able to claim the right of approving the removal of presidential appointees, executive officials would have become dependent on the will of the Senate, and the United States would have created something similar to the English system of cabinet responsibility to Parliament.

For an article arguing that Hamilton's reference to "displace[ment]" was not intended to encompass mere "removal", see here. A response has recently appeared, which I have not yet read:: Jeremy D. Bailey, The Traditional View of Hamilton's Federalist No. 77 and an Unexpected Challenge: A Response to Seth Barrett Tillman.


  1. Anonymous3:05 PM

    Thanks for the tip on Gordon Wood's new book being out. I had missed that somehow.

    Wasn't Andrew Johnson impeached for attempting to dismiss cabinet officers without congressional approval?

  2. Grant,

    You are absolutely right about Andrew Johnson. He was impeached for violating the Tenure of Office Act by dismissing Edward Stanton as Secretary of War.

    I'm about 250 pages in the Prof. Wood's book. Needless to say, highly recommended for those interested in the period.

  3. Anonymous7:51 PM

    If you send me your snail-mail address, I'd be happy to send you a reprint of the Bailey-Tillman exchange, forthcoming circa 2010. My e-mail address can be found on SSRN.



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