Crisis and Command: A History of Executive Power from George Washington to George W. Bush (10 page)

The Revolutionary War had revealed Congress to be feeble and the states to be unreliable. Washington had exercised broad executive and administrative authorities that went well beyond battlefield command to keep the army supplied. This experience made Washington a firm nationalist who supported a more effectively organized and vigorous national government. Though he barely spoke at the Constitutional Convention, Washington placed his considerable prestige behind the enterprise. During ratification, he launched a one-man letter-writing campaign to encourage Federalists throughout the country, and particularly in his critical home state of Virginia, to win the Constitution's approval. Washington remains the only President to be elected by a unanimous vote of the Electoral College.

Because the American republic grew so successfully, we tend to treat Washington's decisions with an air of inevitability, but the constitutional text left more questions about the executive unanswered than answered. Article II vested
the
executive power of the United States in a single President, but it did not list its components (unlike Article I's enumeration of legislative powers). It did not create any advisors, heads of departments, or a cabinet, not to mention a White House staff; specify how the President should interact with Congress, the courts, or the states; nor describe how the President and the Senate were to exercise their joint powers over treaties and appointments.

Washington filled these gaps with a number of foundational decisions -- several on a par with those made during the writing and ratification of the Constitution itself. His desire to govern by consensus sometimes led him to seek cooperation with the other branches. He was a republican before he was a Federalist, but ultimately Washington favored an energetic, independent executive, even at the cost of political harmony. Washington centralized decision-making in his office so that there would be no confusion about his responsibility and accountability, and his direct orders sped quickly through the small federal bureaucracy. He took the initiative in enforcing the law and followed his own interpretation of the Constitution.

To Washington, the departments and their secretaries served only as "dependent agencies of the Chief Executive." As Leonard White has written, the President made "all major decisions of administration" and took full responsibility for them.
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He managed diplomatic relations with other countries and set the nation's foreign policy. At the end of his two terms, the Presidency looked much like the one described in
The Federalist
. Hamilton's outsized performance as Secretary of the Treasury helped, but the real credit goes to Washington.
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None of this was foreordained. Washington could have chosen to mimic a parliamentary system with cabinet secretaries who represented different factions in the legislature or a balanced government with executive branch officials drawn from an aristocratic social class. He could have assumed the function of a head of state and given department secretaries freedom over their jurisdictions. Or he could have considered the Presidency as Congress's clerk, draining any initiative from the job and committing himself solely to carrying out legislative directions. He might even have thought of himself as the servant of the states (he certainly did not; on a trip to Boston, President Washington refused to call on Governor John Hancock, instead forcing an ill Hancock to come to him first).
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Washington ranks in the most recent scholarly poll as our nation's greatest President. Some might think that his high standing rewards him, like Jefferson, for his achievements before he assumed office, but this view understates the second source of his greatness -- establishing a stable government under law that has endured to this day. Washington led the nation through its first growing pains, restored the country's finances, kept the nation out of a dangerous European war, opened the West to American expansion, and saw the Constitution through the appearance of the first political parties (something the Framers did not foresee and would have opposed). Washington did all of this without seeking popularity and without enjoying what we would think of today as political talents. He was a natural leader, one of the finest horsemen of his age, and a tall and strong man. He had single-handedly ended a riot among northern and southern soldiers on Boston Commons by grabbing the leaders in each hand and shaking them into submission. Washington was stern, distant, and concerned above all about his reputation. He carried himself with gravitas, projected a demeanor of republican simplicity and virtue (hence the fable about the cherry tree), and yet struggled his whole life to control a ferocious temper. Every President since Washington's day has had the impossible task of measuring up to his founding example.

ESTABLISHING THE PRESIDENCY

AFTER HIS ELECTION in early 1789, Washington took his time getting to the nation's capital in New York City. He wanted to give Congress time to count the electoral votes, avoid the appearance of unseemly eagerness, and allow the people to see the physical symbol of the new national government. Once installed, Washington made clear who was in charge.

Three approaches to organizing the executive branch existed.
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Some Senators believed they would share administrative authority because of their say over appointments and the example set by the state advisory councils. A second view, identified with Alexander Hamilton, held that department heads would perform the same positions as ministers in Great Britain; they would exercise significant independent discretion and coordinate the making of policy in Congress and its implementation by the executive. Washington chose a third, which resembled the organization of his military command. The President alone would exercise the executive power. He would receive advice from his department secretaries, who would supervise the inferior officers in their agencies. All matters of executive policy would come to him. He would either make all significant decisions or delegate them. Administration, in the words of historian Forrest McDonald, was "highly personal, after the fashion of the pre-bureaucratic eighteenth-century world."
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Washington's initiative became apparent within a month of his inauguration. Even though there were no federal laws to enforce nor positions to fill, Washington quickly took over the existing administrative machinery of the Articles of Confederation. He ordered the ministers of war and foreign affairs and the Board of Treasury to provide him with "an acquaintance with the real situation of the several great Departments, at the period of my acceding to the administration of the general Government" and a "full, precise, and distinct general idea of the affairs of the United States."
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He made clear that subordinate executive branch officials were his assistants, rather than independent power centers. Washington wrote that the "impossibility that one man should be able to perform all the great business of the State, I take to have been the reason for instituting the great Departments, and appointing officers therein, to assist the supreme Magistrate in discharging the duties of his trust."
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Washington could not have accomplished this alone. He had a willing and able ally in the 38-year-old Congressman from Virginia, James Madison. Even though he had played the leading intellectual role in the drafting of the Constitution, had cowritten the newspaper editorials that would become
The Federalist
, and had led the forces for ratification in the Virginia convention, Madison had barely won election to the House due to Patrick Henry's opposition. Once there, Madison promoted Washington's policies -- a position that would not last into the second term. Madison is what we would today think of as a coalition builder: organizing behind the scenes, ceding political credit to others, acting through committees and larger bodies, yet always moving others toward his preferred goal. What he lacked in political gifts -- he was short, fearfully shy, and had a weak voice -- he more than made up for in his genuine intellect, willingness to work the longest hours, and meticulous preparation. It is no wonder that he has always been a favorite of scholars.

Madison took the lead in enacting legislation to establish the government, from the constitutional amendments that became the Bill of Rights to the first direct national taxes in American history. Madison likewise managed the debate over the establishment of the first great executive departments, what Daniel Webster would later call the "Decision of 1789."
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The key issue concerned the authority to remove the heads of the departments of Foreign Affairs, War, and the Treasury. Four possibilities existed. First, the Constitution may have intended that the President exercise the power alone, with the Senate's role in confirmation being the sole exception from his general control over appointments. Second, it could have reserved the right to the President and Senate together, under the idea that the same process should be used to reverse a decision as to make it. Third, removal might only occur through impeachment. Or fourth, the Constitution could leave the power to Congress, as part of its power under the Necessary and Proper Clause, to establish the departments in the first place.

Decision of this question had profound implications for presidential control of the executive branch. The constitutional text is silent as to whether cabinet officers must obey presidential orders, and chief executives to this day back up their commands with the implicit threat of removal. If cabinet members could only be removed by impeachment, or with the advice and consent of the Senate, they would feel little fear when ignoring presidential directives. Congress also recognizes this relationship between removal and control, and since the New Deal has tried to impose conditions on the removal of officials who work for the independent agencies. The 1978 Ethics in Government Act, for example, created an independent prosecutor by prohibiting his or her removal except for committing a felony or other violation of the law. Impeachment or congressional discretion over removal would have created even greater disruption by transferring effective control over subordinate executive officials to the legislature. Only an inherent removal power in Article II's undefined grant of the executive power allowed control of subordinate officers by the President.

When Congress took up the issue of national finance on May 19, 1789, Madison proposed three departments: War, Foreign Affairs, and Treasury. Each department would have a Secretary, appointed by the President with the advice and consent of the Senate, but removable by the President alone.
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Amendments to require Senate approval of removals failed, and Madison's proposal won a considerable majority.
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Specific bills detailing each department's functions came before Congress a month later, whereupon opponents of executive power again attempted to strike recognition of the President's removal authority.

Madison argued that the President's standing as Chief Executive gave him the inherent power to fire subordinates. "Is the power of displacing an executive power?" Madison asked the House on June 16. "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."
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The Constitution only allowed a single exception to the President's power in the Senate's advice and consent function. Congress could not add others. "If the constitution has invested all executive power in the President," Madison said, "I venture to assert that the Legislature has no right to diminish or modify his executive authority."

While there were dissenters, the First Congress clearly believed that Article II's vesting of the executive power in the President was more than a stylistic device. Madison's supporters amended the bills to make clear that Congress was not granting the President the power to remove, but only recognizing his constitutional authority to do so.
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In the Senate, which we would expect to be more jealous of its prerogatives, the removal provision encountered more difficulties. The Senate deadlocked 10-10 on the bills to create the Departments of Foreign Affairs and War because of the removal question. Vice President Adams broke both ties in favor of the House versions, handing the administration a victory. The Treasury bill raised a different variation of the executive power issue. Critics thought the power of the Department was too great, particularly its authority to "digest and prepare plans for the improvement and management of the revenue, and the support of the public credit," which they believed properly rested within Congress's power of the purse. They sought to divide leadership of the Treasury into a board, as under the Articles of Confederation, and to limit the President's removal power because the Department exercised legislative powers. Again, Madison succeeded in convincing the House to create a Treasury Department with maximum authority and energy, but within the President's control, and again the Vice President broke a Senate tie in the administration's favor.
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Members of the legislative and executive branch would recognize that the "Decision of 1789" represented Congress's own constitutional understanding of the President's executive authority to remove subordinate officials. In the course of the debate, supporters of presidential removal argued that the Chief Executive bore the constitutional obligation to faithfully execute the laws. This required that subordinates aid him "in the administration of his department."
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The President's power to remove gave him the power to make sure that these officials enforce the laws as he wished. Giving Congress or the Senate a role in removal would make the President a "mere vapor" and would place "the Legislature at the head of the Executive branch."
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As Madison wrote to Jefferson, the House vote was "most consonant to the text of the Constitution, to the policy of mixing the Legislative and Executive Departments as little as possible, and to the requisite responsibility and harmony in the Executive Department."
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