This power clearly negatives the
idea that a much higher power over them was intended to be conferred, and negatives that
also that it was the intention of the framers of the Constitution to create a Cabinet. The
duties of the officers indicated by the description of "the principal officer in each
of the Executive Departments" are not specified in the Constitution; but Congress,
under the power "to make all laws which shall be necessary and proper for carrying
into execution"
the "powers vested by this Constitution
in any
department or officer thereof," have, from time to time, created various departments
and changed those duties at pleasure. Did the Constitution intend that the President at
all times and under all circumstances, shall have in those departments such officers as he
shall think proper? The power conferred on him in the selection of the Heads of
Departments is that he shall "nominate and by and with the advice and consent
of the Senate appoint" them. It was intended that he should take the advice of
the Senate on that head, and after obtaining their consent appoint. General
Washington construed the Executive power "by and with the advice and consent of the
Senate to make treaties," as intending that he should in advance take such advice. In
the proceedings, in 1789, of the First Congress, will be found a note from General
Washington, addressed to the Senate, informing them that he would meet them at their
chamber, to take their advice on the formation of an Indian treaty, for which purpose the
Senate passed a resolution to receive him at the time mentioned. They met and consulted
together; and such was no doubt the intention of the Constitution. The language of the
power with respect to officers is somewhat different; but that the Senate was to advise
with the President on that subject is very clear. The practice has doubtless been
abandoned from the multiplicity of nominations and appointments. The language contemplated
intimate relations between the Senate and the President on that subject. It will be
recollected that Mr. Stanton, under the Tenure-of-Office Act, was suspended by President
Johnson, and that General Grant was appointed Secretary ad interim under the
authority of that act. The suspension of Mr. Stanton was reported to the Senate as having
been made for some of the causes of objection which the act enumerates, but they were
deemed insufficient, and Mr. Stanton was restored. This action amounted to the
Senates advice on that subject, and was equivalent to the refusal of the Senate to
consent to Mr. Stantons removal. In defiance of such advice and of the plain
intent of the Tenure-of-Office Act, the President removed Mr. Stanton. This, as we have
seen, constitutes one of the grounds of impeachment.
Mr. Stantons removal was proof not
only of a want of cordiality between the President and the Senate, but of a wide
difference between them, and it is scarcely to be expected that the Senate, which is
invested with the power "to advise and consent" to appointments, would use the
power in order to arm the President with an officer in hostilityin the gravest
matters of public concernnot only to the Senate, but also to the House of
Representatives. Such an officer, if appointed, would add to the power of the President to
obstruct the action of Congress. Indeed, with the complete command of the War Department
and of the army and all the material of war, the President might defy the popular branch
of the Government. The Presidents course furnished just grounds of suspicion that
his motives in appointing General Thomas to the control of that Department were such as
could not be tolerated. All laws conflicting with the Tenure-of-Office Act having been in
terms repealed by it, there was no such office as the "Secretary of War ad interim,"
except in the contingency of suspension. Removal, not suspension, was
resorted to, and hence the chief clerk was to act as custodian of the books and papers if
a vacancy had occurred, which it did not; but the President chose to assume that
there was a vacancy against the fact, and to order General Thomas to fill it. The order
was in the nature of a military order from the commander-in-Chief to a subordinate, who
was directed in a wholly illegal manner to take possession of the Department. These
extraordinary proceedings show that Congress was right in withdrawing from the President
the power of removal which the act of 1789 assumed that he possessed, and in declaring
that it should be exercised only by and with the advice and consent of the Senate.
The Secretary of War is, in ordinary
times, when there is perfect accord between all the branches of the Government, as
important to Congress as to the President. It is in the power of Congress at any time to
abolish the office, and to create it again at their pleasure. If they can destroy and
create at pleasure, may no Congress say that this officer shall not be removed except by
the same ceremonies that were required before appointment? that is to say, the
Senates advice and consent.
Mr. Madison undoubtedly argued in
Congress in favor of the Presidents power; but, as he was one of the recognized
authors of the Federalist, he was clearly committed to the doctrine advanced in the 77th
No. of that work, that "the consent of that body (the Senate) would be necessary to
displace as well as to appoint." The names of the several authors were not at the
time of their publication announced, and hence it may be said (although Mr. Hamilton was
the author of that article) that Mr. Madison abandoned, when supporting Washingtons
administration, a position which he advanced to secure the adoption of the Constitution.
"Where a man"(said Mr.
Hamilton)"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."
These are the words of one of the authors
of the Constitution, of its most distinguished commentator, and of a Cabinet officer
afterward of the highest authority. They do not sustain the haughty claims made in the
Presidents behalf, as if he were "the sole disposer of offices." The
President has encroached upon this distribution of power in face of the advice of
the Senate deliberately given, in face of the solemn decision of Congress, and, it now
appears, in face of the true meaning of the Constitution.