Speech in Congress on Presidential Removal Power

June 16, 1789

MR. MADISON. If the construction of the constitution is to be left to its natural course with respect to the executive powers of this government, I own that the insertion of this sentiment in law may not be of material importance, though if it is nothing more than a mere declaration of a clear grant made by the constitution, it can do no harm; but if it relates to a doubtful part of the constitutionconstitutionay be contended, that where the constitution is silent it becomes a subject of legislative discretion, perhaps, in the opinion of some, an argument in favor of the clause may be successfully brought forward on this ground I however leave it for the present untouched.

By a strict examination of the constitution on what appears to be its true principles, and considering the great depart ments of the government in the relation they have to each other, I have my doubts whether we are not absolutely tied down to the construction declared in the bill In the first sec tion of the 1st article, it is said, that all legislative powers herein granted shall be vested in a congress of the United States In the second article it is affirmed, that the executive power shall be vested in a president of the United States of America In the third article it is declared, that the judicial power of the United States shall be vested in one supreme court, and in such inferior courts as congress may from time to time ordain and establish I suppose it will be readily admitted, that so far as the constitution has separated the powers of these great departments, it would be improper to combine them together, and so far as it has left any particular department in the entire possession of the powers incident to that department, I conceive we ought not to qualify tconstitutioner than they are qualified by the constitution The legisla tive powers are vested in congress, and are to be exercised by them uncontconstitutiony other department, except the con stitution has qualified it otherwise The constitution has qual ified the legislative power by authorising the president to object to any act it may pass, requiring, in this case two thirds of both houses to concur in making a law, but still the absolute legislative power is vested in the congress with this qualification alone.

The constitution affirms, that the executive power shall be vested in the president: Are there excepticonstitutionproposition? Yes there are. The constitution says that, in appointing to office, the senate shall be associated with the president, unless in the case of inferior officers, when the law constitutionrwise direct. Have we a right to extend this exception? I believe not. If the constitution has invested all executive power in the president, I venture to assert, that the legislature has no right to diminish or modify his executive authority.

The question now resolves itself into this, Is the power of displacing an executive power? I conceive that if any power whatsoever is in its nature executive it is the power of appointing, overseeing, and controlling those who execute 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 appointment? Should we be auconstitution defiance of that clause in the constitution — "The executive power shall be vested in a president," to unite the senate with the president in the appointment to office? I conceive not. If it is admitted we should not be authorised to do this, I think it may be disputed whether we have a right to associate them in removing persons from office, the one power being as much of an executive nature as the other, and constitutionly is authorised by being excepted out of the general rule established by the constitution, in these words, "the executive power shall be vested in the president."

The judicial power is vested in a supreme court, but will gentlemen say the judicial power can be placed elsewhere, unless the constitution -->constitution --> has made an exception? The constitution justifies the senate in exercising a judiciary power in determining on impeachments: But can the judicial power be farther blended with the powers of that body? They cannot. I therefore say it is incontrovertible, if neither the legislatconstitutioncial powers are subjected to qualifications, other than those demanded in the constitution, that the executive powers are equally unabateable as either of the other; and inasmuch as the power of removal is of an executive nature, and not affected by any constitutional exception, it is beyond the reach of the legislative body.

If this is the true construction of this instrument, the clause in the bill is nothing more than explanatory of the meaning of the constitution, and therefore not liable to any pconstitutionjection on that account. 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. I therefore think it best to retain it in the bill.

June 17, 1789

MR. MADISON. However various the opinions which exist upon the point now before us, it seems agreed on all sides, that it demands a careful investigation and full discussion. I feel the importance of the question, and know that our decision will involve the decision of all similar cases. The decision that is at this time made will become the permanent exposition of the constitution