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 constitution, I suppose an exposition of the constitution may come with as much propriety from the legislature as any other department of government. If the power naturally belongs to the government, and the constitution is undecided as to the body which is to exercise it, it is likely that it is submitted to the discretion of the legislature, and the question will depend upon its own merits.
I am clearly of opinion with the gentleman from South-Carolina (Mr. Smith,) that we ought in this and every other case to adhere to the constitution, so far as it will serve as a guide to us, and that we ought not to be swayed in our decisions by the splendor of the character of the present chief magistrate, but to consider it with respect to the merit of men who, in the ordinary course of things, may be supposed to fill the chair. I believe the power here declared is a high one, and in some respects a dangerous one; but in order to come to a right decision on this point, we must consider both sides of the question. The possible abuses which may spring from the single will of the first magistrate, and the abuse which may spring from the combined will of the executive and the senatorial qualification.
When we consider that the first magistrate is to be appointed at present by the suffrages of three millions of people, and in all human probability in a few years time by double that number, it is not to be presumed that a vicious or bad character will be selected. If the government of any country on the face of the earth was ever effectually guarded against the election of ambitious or designing characters to the first office of the state, I think it may with truth be said to be the case under the constitution of the United States. With all the infirmities incident to a popular election, corrected by the particular mode of conducting it, as directed under the pres ent 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 Where the people are dis posed to give so great an elevation to one of their fellow cit izens, I own that I am not afraid to place my confidence in him, especially when I know he is impeachable for any crime or misdemeanor, before the senate, at all times, and that at all events he is impeachable before the community at large every four years, and liable to be displaced if his conduct shall have given umbrage during the time he has been in office Under these circumstances, although the trust is a high one, and in some degree perhaps a dangerous one, I am not sure but it will be safer here than placed where some gentlemen suppose it ought to be.
It is evidently the intention of the constitution that the first magistrate should be responsible for the executive department, so far therefore as we do not make the officers who are to aid him in the duties of that department responsible to him, he is not responsible to his country Again, is there no danger that an officer when he is appointed by the concur rence of the senate, and has friends in that body, may chuse rather to risk his establishment on the favor of that branch, than rest it upon the discharge of his duties to the satisfaction to the executive branch, which is constitutionally authorised to inspect and controul his conduct? And if it should happen that the officers connect themselves with the senate, they may mutually support each other, and for want of efficacy reduce the power of the president to a mere vapor, in which case his responsibility would be annihilated, and the expectation of it unjust The high executive officers, joined in cabal with the senate, would lay the foundation of discord, and end in an as sumption of the executive power, only to be removed by a revolution in the government I believe no principle is more clearly laid down in the constitution than that of responsibil ity After premising this, I will proceed to an investigation of the merits of the question upon constitutional ground.
I have since the subject was last before the house, examined the constitution with attention, and I acknowledge that it does not perfectly correspond with the ideas I entertained of it from the first glance I am inclined to think that a free and systematic interpretation of the plan of government, will leave us less at liberty to abate the responsibility than gentlemen imagine I have already acknowledged, that the powers of the government must remain as apportioned by the constitution But it may 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 them far ther than they are qualified by the constitution The legisla tive powers are vested in congress, and are to be exercised by them uncontrolled by any 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 exceptions to this proposition? 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 shall otherwise 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 authorised, in 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 the first only 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 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 legislative nor judicial 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 particular objection 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; and on a permanent exposition of the constitution will depend the genius and character of the whole government. It will depend, perhaps, on this decision, whether the government shall retain that equilibrium which the constitution intended, or take a direction toward aristocracy, or anarchy among the members of the government. Hence how careful ought we to be to give a true direction to a power so critically circumstanced. It is incumbent on us to weigh with particular attention the arguments which have been advanced in support of the various opinions with cautious deliberation. I own to you, Mr. Chairman, that I feel great anxiety upon this question; I feel an anxiety, 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. But all that I can do on such an occasion is to weigh well every thing advanced on both sides, with the purest desire to find out the true meaning of the constitution, and to be guided by that, and an attachment to the true spirit of liberty, whose influence I believe strongly predominates here.
Several constructions have been put upon the constitution relative to the point in question. The gentleman from Connecticut (Mr. Sherman) has advanced a doctrine which was not touched upon before. He seems to think (if I understood him right), that the power of displacing from office is subject to legislative discretion; because it having a right to create, it may limit or modify as is thought proper. I shall not say but at first view this doctrine may seem to have some plausibility: But when I consider, that the constitution clearly intended to maintain a marked distinction between the legislative, executive, and judicial powers of government; and when I consider, that if the legislature has a power, such as contended for, they may subject, and transfer at discretion, powers from one department of government to another; they may, on that principle, exclude the president altogether from exercising any authority in the removal of officers; they may give it to the senate alone, or the president and senate combined; they may vest it in the whole congress, or they may reserve it to be exercised by this house. When I consider the consequences of this doctrine, and compare them with the true principles of the constitution, I own that I cannot subscribe to it.
Another doctrine which has found very respectable friends, has been particularly advocated by the gendeman from South-Carolina (Mr. Smith). It is this; when an officer is appointed by the president and senate, he can only be displaced from malfeasance in his office by impeachment: I think this would give a stability to the executive department so far as it may be described by the heads of departments, which is more incompatible with the genius of republican government in general, and this constitution in particular, than any doctrine which has yet been proposed. The danger to liberty, the danger of mal-administration has not yet been found to lay so much in the facility of introducing improper persons into office, as in the difficulty of displacing those who are unworthy of the public trust. If it is said that an officer once appointed shall not be displaced without the formality required by impeachment, I shall be glad to know what security we have for the faithful administration of the government. Every individual in the long chain which extends from the highest to the lowest link of the executive magistracy, would find a security in his situation which would relax his fidelity and promptitude in the discharge of his duty.
The doctrine, however, which seems to stand most in opposition to the principles I contend for, is that the power to annul an appointment is in the nature of things incidental to the power which makes the appointment. I agree that if nothing more was said in the constitution than that the president, by and with the advice and consent of the senate, should appoint to office, there would be great force in saying that the power of removal resulted by a natural implication from the power of appointing. But there is another part of the constitution no less explicit than the one on which the gentleman's doctrine is founded, it is that part which declares, that the executive power shall be vested in a president of the United States. The association of the senate with the president in exercising that particular function, is an exception to this general rule; and exceptions to general rules, I conceive, are ever to be taken strictly. But there is another part of the constitution which inclines in my judgment, to favor the construction I put upon it; the president is required to take care that the laws be faithfully executed. If the duty to see the laws faithfully executed be required at the hands of the executive magistrate, it would seem that it was generally intended he should have that species of power which is necessary to accomplish that end. Now if the officer when once appointed, is not to depend upon the president for his official existence, but upon a distinct body (for where there are two negatives required either can prevent the removal), I confess I do not see how the president can take care that the laws be faithfully executed. It is true by a circuitous operation, he may obtain an impeachment, and even without this it is possible he may obtain the concurrence of the senate for the purpose of displacing an officer; but would this give that species of control to the executive magistrate which seems to be required by the constitution? I own if my opinion was not contrary to that entertained by what I suppose to be the minority on this question, I should be doubtful of being mistaken, when I discovered how inconsistent that construction would make the constitution with itself. I can hardly bring myself to imagine the wisdom of the convention who framed the constitution, contemplated such incongruity.
There is another maxim which ought to direct us in expounding the constitution, and is of great importance. It is laid down in most of the constitutions or bills of rights in the republics of America, it is to be found in the political writings of the most celebrated civilians, and is every where held as essential to the preservation of liberty, That the three great departments of government be kept separate and distinct; and if in any case they are blended, it is in order to admit a partial qualification in order more effectually to guard against an entire consolidation. I think, therefore, when we review the several parts of this constitution, when it says that the legislative powers shall be vested in a Congress of the United States under certain exceptions, and the executive power vested in the president with certain exceptions, we must suppose they were intended to be kept separate in all cases in which they are not blended, and ought consequently to expound the constitution so as to blend them as little as possible.
Every thing relative to the merits of the question as distinguished from a constitutional question, seems to turn on the danger of such a power vested in the president alone. But when I consider the checks under which he lies in the exercise of this power, I own to you I feel no apprehensions but what arise from the dangers incidental to the power itself; for dangers will be incidental to it, vest it where you please. I will not reiterate what was said before with respect to the mode of election, and the extreme improbability that any citizen will be selected from the mass of citizens who is not highly distinguished by his abilities and worth; in this alone we have no small security for the faithful exercise of this power. But, throwing that out of the question, let us consider the restraints he will feel after he is placed in that elevated station. It is to be remarked that the power in this case will not consist so much in continuing a bad man in office, as in the danger of displacing a good one. Perhaps the great danger, as has been observed, of abuse in the executive power, lies in the improper continuance of bad men in office. But the power we contend for will not enable him to do this; for if an unworthy man be continued in office by an unworthy president, the house of representatives can at any time impeach him, and the senate can remove him, whether the president chuses or not. The danger then consists merely in this: the president can displace from office a man whose merits require that he should be continued in it. What will be the motives which the president can feel for such abuse of his power, and the restraints that operate to prevent it? In the first place, he will be im-peachable by this house, before the senate, for such an act of mal-administration; for I contend that the wanton removal of meritorious officers would subject him to impeachment and removal from his own high trust. But what can be his motives for displacing a worthy man? It must be that he may fill the place with an unworthy creature of his own. Can he accomplish this end? No; he can place no man in the vacancy whom the senate shall not approve; and if he could fill the vacancy with the man he might chuse, I am sure he would have little inducement to make an improper removal. Let us consider the consequences. The injured man will be supported by the popular opinion; the community will take side with him against the president; it will facilitate those combinations, and give success to those exertions which will be pursued to prevent his re-election. To displace a man of high merit, and who from his station may be supposed a man of extensive influence, are considerations which will excite serious reflections beforehand in the mind of any man who may fill the presidential chair; the friends of those individuals, and the public sympathy will be against him. If this should not produce his impeachment before the senate, it will amount to an impeachment before the community, who will have the power of punishment by refusing to re-elect him. But suppose this persecuted individual, cannot obtain revenge in this mode; there are other modes in which he could make the situation of the president very inconvenient, if you suppose him resolutely bent on executing the dictates of resentment. If he had not influence enough to direct the vengeance of the whole community, he may probably be able to obtain an appointment in one or other branch of the legislature; and being a man of weight, talents and influence in either case, he may prove to the president troublesome indeed. We have seen examples in the history of other nations, which justifies the remark I now have made. Though the prerogatives of the British king are great as his rank, and it is unquestionably known that he has a positive influence over both branches of the legislative body, yet there have been examples in which the appointment and removal of ministers has been found to be dictated by one or other of those branches. Now if this is the case with an hereditary monarch, possessed of those high prerogatives and furnished with so many means of influence; can we suppose a president elected for four years only dependent upon the popular voice impeachable by the legislature? Little if at all distinguished for wealth, personal talents, or influence from the head of the department himself; I say, will he bid defiance to all these considerations, and wantonly dismiss a meritorious and virtuous officer? Such abuse of power exceeds my conception: If any thing takes place in the ordinary course of business of this kind, my imagination cannot extend to it on any rational principle. But let us not consider the question on one side only; there are dangers to be contemplated on the other. Vest this power in the senate jointly with the president, and you abolish at once that great principle of unity and responsibility in the executive department, which was intended for the security of liberty and the public good. If the president should possess alone the power of removal from office, those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; the lowest officers, the middle grade, and the highest, will depend, as they ought, on the president, and the president on the community. The chain of dependence therefore terminates in the supreme body, namely, in the people; who will possess besides, in aid of their original power, the decisive engine of impeachment. Take the other supposition, that the power should be vested in the senate, on the principle that the power to displace is necessarily connected with the power to appoint. It is declared by the constitution, that we may by law vest the appointment of inferior officers, in the heads of departments, the power of removal being incidental, as stated by some gentlemen. Where does this terminate? If you begin with the subordinate officers, they are dependent on their superior, he on the next superior, and he on whom? on the senate, a permanent body; a body, by its particular mode of election, in reality existing for ever; a body possessing that proportion of aristocratic power which the constitution no doubt thought wise to be established in the system, but which some have strongly excepted against: And let me ask gentlemen, is there equal security in this case as in the other? Shall we trust the senate, responsible to individual legislatures, rather than the person who is responsible to the whole community? It is true the senate do not hold their offices for life, like aristocracies recorded in the historic page; yet the fact is they will not possess that responsibility for the exercise of executive powers which would render it safe for us to vest such powers in them. But what an aspect will this give to the executive? Instead of keeping the departments of government distinct, you make an executive out of one branch of the legislature; you make the executive a two-headed monster, to use the expression of the gentleman from New-Hampshire (Mr. Livermore); you destroy the great principle of responsibility, and perhaps have the creature divided in its will, defeating the very purposes for which an unity in the executive was instituted. These objections do not lie against such an arrangement as the bill establishes. I conceive that the president is sufficiently accountable to the community; and if this power is vested in him, it will be vested where its nature requires it should be vested; if any thing in its nature is executive it must be that power which is employed in superintending and seeing that the laws are faithfully executed; the laws cannot be executed but by officers appointed for that purpose; therefore those who are over such officers naturally possess the executive power. If any other doctrine be admitted, what is the consequence? You may set the senate at the head of the executive department, or you may require that the officers hold their places during the pleasure of this branch of the legislature, if you cannot go so far as to say we shall appoint them; and by this means you link together two branches of the government which the preservation of liberty requires to be constantly separated.
Another species of argument has been urged against this clause. It is said, that it is improper, or at least unnecessary to come to any decision on this subject. It has been said by one gentleman, that it would be officious in this branch of the legislature to expound the constitution, so far as it relates to the division of power between the president and senate; it is incontrovertably of as much importance to this branch of the government as to any other, that the constitution should be preserved entire. It is our duty, so far as it depends upon us, to take care that the powers of the constitution be preserved entire to every department of government; the breach of the constitution in one point, will facilitate the breach in another; a breach in this point may destroy that equilibrium by which the house retains its consequence and share of power; therefore we are not chargeable with an officious interference; besides, the bill, before it can have effect, must be submitted to both those branches who are particularly interested in it; the senate may negative, or the president may object if he thinks it unconstitutional.
But the great objection drawn from the source to which the last arguments would lead us is, that the legislature itself has no right to expound the constitution; that wherever its meaning is doubtful, you must leave it to take its course, until the judiciary is called upon to declare its meaning. I acknowledge, in the ordinary course of government, that the exposition of the laws and constitution devolves upon the judicial. But, I beg to know, upon what principle it can be contended, that any one department draws from the constitution greater powers than another, in marking out the limits of the powers of the several departments. The constitution is the charter of the people to the government; it specifies certain great powers as absolutely granted, and marks out the departments to exercise them. If the constitutional boundary of either be brought into question, I do not see that any one of these independent departments has more right than another to declare their sentiments on that point.
Perhaps this is an omitted case. There is not one government on the face of the earth, so far as I recollect, there is not one in the United States, in which provision is made for a particular authority to determine the limits of the constitutional division of power between the branches of the government. In all systems there are points which must be adjusted by the departments themselves, to which no one of them is competent. If it cannot be determined in this way, there is no resource left but the will of the community, to be collected in some mode to be provided by the constitution, or one dictated by the necessity of the case. It is therefore a fair question, whether this great point may not as well be decided, at least by the whole legislature, as by a part, by us as well as by the executive or judicial? As I think it will be equally constitutional, I cannot imagine it will be less safe, that the exposition should issue from the legislative authority than any other; and the more so, because it involves in the decision the opinions of both those departments whose powers are supposed to be affected by it. Beside, I do not see in what way this question could come before the judges, to obtain a fair and solemn decision; but even if it were the case that it could, I should suppose, at least while the government is not led by passion, disturbed by faction, or deceived by any discoloured medium of light; but while there is a desire in all to see, and be guided by the benignant ray of truth, that the decision may be made with the most advantage by the legislature itself. My conclusion from these reflections is, that it will be constitutional to retain the clause; that it expresses the meaning of the constitution as must be established by fair construction, and a construction which, upon the whole, not only consists with liberty, but is more favorable to it than any one of the interpretations that have been proposed.