Can a President Just Say “You’re Fired!”?News at Home
tags: FBI, Comey
Ray Raphael’s The U. S. Constitution: The Citizen’s Annotated Edition (Vintage, 2016) is now available as an ebook. Among his nine previous books on the Founding Era are Mr. President: How and Why the Founders Created a Chief Executive (Knopf, 2012) andConstitutional Myths (New Press, 2013).
The surprising answer is that the Founding Fathers weren't sure.
Article II, Section 2, of the Constitution empowers the president to appoint, “by and with the Advice and Consent of the Senate,” ambassadors, justices of the Supreme Court, and “other public Ministers and Consuls.” Appointive powers are clearly shared, but what about the power of dismissal? Can a president fire an officer on his own accord, without the Senate’s consent?
That’s a troublesome question. James Madison held that the Constitution was “silent” on the matter, but Alexander Hamilton declared that the meaning was clear. In The Federalist No. 67, he noted that the “power of appointment is confided to the President and Senate jointly”—his emphasis. This followed custom: No state constitution had granted appointive powers to a single person. Then in The Federalist No. 77, he stated definitively: “The consent of that body [the Senate] would be necessary to displace as well as to appoint.” Further, he explained why that was a good idea: “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.” In this rendering, department heads would be more likely to continue in office when the presidency changes hands, leading to greater constancy in government. This feature, admittedly, had not been Hamilton’s first choice—according to the plan he set forth at the Convention, the president alone would exercise all appointive powers. But that plan had not been adopted, and when writing as Publius,Hamilton tried to assure those who feared executive overreach that the president could not dismiss an appointee at whim.
The issue came to a head in the First Federal Congress, almost two years after the framers drafted the provision. On June 16, 1789, the House of Representatives took up a committee’s draft for the creation of a 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. Alexander White of Virginia immediately moved to strike it out: “The power of appointing and dismissing” were “united in their natures,” he declared, and this was “a principle that never was called into question in any Government.” Indeed, no state at the time gave its governor the exclusive right of dismissal.
In the ensuing debate, plain logic seemed to favor those who insisted on Senate involvement. “If the Senate are associated with the President in the appointment, they ought also to be associated in the dismission from office,” they reasoned. Congress therefore had “no right to deprive the Senate of their constitutional prerogative.”
But was it that simple? James Madison countered with three arguments. First, he pointed to Article II, Section 1: “The executive Power shall be vested in a President.” He admitted that appointive power was an exception, but since dismissal power was not explicitly mentioned as an exception, that power reverted to the president. But this begged the central question: Is the power of dismissal inherent within the power of appointment?
Next, Madison argued that the President was “appointed at present by the suffrages of three millions of people,” and the ingenious system of presidential electors insured that the president would be a good choice: “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.” But this simplistic argument could be used to endorse any and all presidential powers, a position Madison would soon reject.
Madison’s final line of reasoning held more weight. 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 re-election 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.”
It was a momentous issue. Either way, resolution would fundamentally shape the distribution of authority in the newly created government. If Congress decided on the sole power of removal, department heads would be under the direct command of the president, and there would in fact be a single chief executive; if it decided on the shared power of removal, executive department heads, working with the Senate as well as the president, would provide greater continuity, one administration to the next.
Speakers on both sides vied for who could best convey the overwhelming gravitas. “The decision that is at this time made,” Madison pronounced, “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 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.”
The House debate continued for four days, outlined in 125 pages of the Annals of Congress. No other phrase, clause, or sentence in pending legislation or the proposed Bill of Rights commanded such attention or excited such passion during the First Federal Congress. In the end, the motion to strike “to be removable from office by the President of the United States” failed by a vote of twenty to thirty-four.
That was only half the battle. After passing the House, presidential authority 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. Few governmental bodies have ever opted for less power instead of more, but would the fledgling United States Senate do so now?
Senate debate lasted three days, but unfortunately, because the Senate met behind closed doors, the only record is William Maclay’s one-sided journal, in which he gave himself center stage. “It is a maxim in legislation as well as reason,” he 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.” 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,” he reported, 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. For want of a single vote in the Senate, the balance of power in our government would have been fundamentally altered.
The president’s authority to dismiss an appointee is now settled law, but with the text unclear, it had to be settled by the First Federal Congress. This presents something of problem for self-professed Originalists, who believe that original meanings can always trump later interpretations. Congress determined the matter, largely on policy grounds, in 1789, but that doesn’t tell us what the framers had in mind in 1787 or how the people who ratified the Constitution in 1788 read that document. Did they, like Hamilton, think that consent of the Senate “would be necessary to displace as well as to appoint”?
Opinions can evolve with time, even just a year of two. During the congressional debates, William Loughton Smith, to support the view that the Senate must give its consent for dismissal, quoted Hamilton’s argument in The Federalist, which he called “a publication of no inconsiderable eminence, in the class of political writings on the constitution.” This bothered Hamilton, who, personally, favored a strong executive. To limit the damage, he sent word to his friends in Congress that since penning The Federalist No. 77, “upon more mature reflection he had changed his opinion & was now convinced that the President alone should have the power of removal at pleasure.” Therein lies the rub: Hamilton “changed his opinion.” Now, he held a different view of how the government should be structured—but the Constitution is what it is, and he could not alter what it says.
Quite plausibly, citizens who pondered whether to ratify the Constitution in 1788 would have assumed that the power to appoint and the power to dismiss were inherently linked. Certainly, most had read the Bible, including the King James rendition of Job 1:21—“Naked came I out of my mother's womb, and naked shall I return thither: the Lord gave, and the Lord hath taken away; blessed be the name of the Lord.” What the president and the Senate can give, the president and the Senate can take away. That remains the simplest reading of the text, although, since 1789, it has not been the operable one.
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