ArtII.S1.C1.3 Early Perspectives on Executive Power

Article II, Section 1, Clause 1:

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows

While the Article I Legislative Vesting Clause provides that “All legislative Powers herein granted shall be vested in a Congress,” 1 thereby distinguishing the legislative powers that the states had granted to the National Government from those the states retained, the Article II Executive Vesting Clause refers only to a general “executive Power,” which is vested in a single person—the President.2 While the Constitution expressly identifies specific powers and duties that belong to the President—for example, the power to pardon and the duty to take care that the laws be faithfully enforced—the Founders differed on whether those powers were exclusive or illustrative.

The First Congress considered the parameters of the executive power and, in particular, the President’s power to remove Executive Branch officers absent the consent of the Senate, the acquiescence of which is necessary for such Executive Branch officers’ appointment.3 Known as the Debate of 1789, the First Congress considered the President’s removal power while it was establishing the Department of State.4 As one commentator has noted: “Congress tacitly recognized the existence of an unrestrained presidential removal power from 1789 to 1867, and it developed into one of [the President’s] most effective instruments for control of the executive branch.” 5 While Congress subsequently passed laws limiting the President’s ability to remove Executive Branch officers,6 the Supreme Court did not address such a law until 1926 in Myers v. United States.7

Similar questions arose with respect to the President’s authority over foreign affairs.8 After President George Washington issued a proclamation declaring the United States neutral when France and Great Britain went to war in 1793, Alexander Hamilton and James Madison took competing positions on whether President Washington had exceeded his constitutional authority. Arguing that Article II does not enumerate all executive powers,9 Hamilton wrote:

The enumeration [of executive powers in the Constitution] ought therefore to be considered, as intended merely to specify the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free government.10

Hamilton continued: “The general doctrine of our Constitution then is, that the executive power of the nation is vested in the President; subject only to the exceptions and qualifications, which are expressed in the instrument.” 11 Rejecting Hamilton’s view that the Constitution granted the President such broad powers, James Madison argued that, if executive powers were unfettered, “no citizen could any longer guess at the character of the government under which he lives; the most penetrating jurist would be unable to scan the extent of constructive prerogative.” 12

Unsurprisingly, Presidents have tended to interpret the Executive Vesting Clause’s provision of executive power expansively. For example, President Thomas Jefferson justified the Louisiana Purchase based on implied executive power.13

U.S. Const. art. I, § 1, cl. 1 (emphasis added). back
Id. art. II, § 1, cl. 1. back
See David P. Currie, the Constitution in Congress: The Federalist Period 1789–1801, at 36–41 (1997) (discussing James Madison’s proposal for a department of foreign affairs). In the Federalist No. 77, Alexander Hamilton commented that the Senate’s consent was necessary for the President to remove an Executive Officer, stating: “The consent of [the Senate] would be necessary to displace as well as to appoint. . . . Where a man 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.” The Federalist No. 77 (Alexander Hamilton). While Congress expressly referred to the President’s removal power in some legislation, e.g., Judiciary Act of 1789, ch. 20, § 27, 1 Stat. 87; Act of May 15, 1820, ch. 102, 3 Stat. 582, the Supreme Court in Myers v. United States observed that Congress adopted these provisions “to show conformity to the legislative decision of 1789.” Myers v. United States, 272 U.S. 52, 146 (1926). back
For discussion on the Debate of 1789, see ArtII.S2.C2.3.15.2 Decision of 1789 and Removals in Early Republic. See also Charles Thach, The Creation of the Presidency 1775–1789 124–49 (1923). back
C. Herman Pritchett, Constitutional Law of the Federal System 293 (1984). See also Act of May 15, 1820 (providing for removal of officers “at pleasure” of the President). back
Tenure of Office Act of 1867, ch. 154, 14 Stat. 430 (requiring, among other things, for the President to have the Senate’s consent to remove the Secretary of War and certain other department heads); Act of July 12, 1876, ch. 179, 19 State. 80, 81 (providing that “Postmasters of the first, second and third classes shall be appointed by the President by and with the advice and consent of the Senate and shall hold their officers for four years unless sooner removed or suspended according to law.” ). See also United States v. Perkins, 116 U.S. 483 (1886). In Perkins, the Court addressed whether the Secretary of the Navy could discharge a naval cadet-engineer at will notwithstanding that the Act of August 5, 1882 provided that naval officers could not be discharged except pursuant to a court-martial. Ruling for the naval cadet-engineer, the Court stated: “The head of a Department has no constitutional prerogative of appointments to offices independently of the legislation of Congress, and by such legislation he must be governed, not only in making appointments but in all that is incident thereto.” Id. at 485. The Court, however, noted that it was not addressing a situation where an officer was appointed by the President with the advice and consent of the Senate. Id. ( “Whether or not Congress can restrict the power of removal incident to the power of appointment of those officers who are appointed by the President by and with the advice of the Senate under the authority of the Constitution (article 2, section 2) does not arise in this case and need not be considered.” ). back
The Court discussed the President’s removal power in dicta in Ex parte Hennen, 38 U.S. (39 Pet.) 230 (1839) (recognizing authority of a District Judge to remove a clerk of the court). For further discussion of the removal power, see ArtII.S2.C2.3.15.1 Overview of Removal of Executive Branch Officers . back
See David P. Currie, The Constitution in Congress: The Federalist Period 1789–1801 174–82 (1997). back
Id. See also Charles Thomas, American Neutrality in 1793: A Study in Cabinet Government (1931). back
7 Works of Alexander Hamilton 76, 80–81 (J. C. Hamilton ed., 1851). back
Id. (emphasis added). back
1 Letters and Other Writings of James Madison 621 (J.B. Lippincott & Co., 1865). back
For discussion of the constitutionality of the Louisiana Purchase, see Everett Brown, The Constitutional History of the Louisiana Purchase, 1803–1812 (1920). For discussion of how the Jeffersonians and Federalists approached executive powers, see Leonard White, The Jeffersonians: A Study in Administrative History 1801–1829 (1951); Leonard White, The Federalists: A Study in Administrative History (1948). back