Administrative Decentralization Versus Jacksonian Centralism.

An opinion rendered by Attorney General Wirt in 1823 asserted the proposition that the President’s duty under the Take Care Clause required of him scarcely more than that he should bring a criminally negligent official to book for his derelictions, either by removing him or by setting in motion against him the processes of impeachment or of criminal prosecutions.733 The opinion entirely overlooked the important question of the location of the power to interpret the law, which is inevitably involved in any effort to enforce it. The diametrically opposed theory that Congress is unable to vest any head of an executive department, even within the field of Congress’s specifically delegated powers, with any legal discretion which the President is not entitled to control was first asserted in unambiguous terms in President Jackson’s Protest Message of April 15, 1834,734 defending his removal of Duane as Secretary of the Treasury, because of the latter’s refusal to remove the deposits from the Bank of the United States. Here it is asserted “that the entire executive power is vested in the President;” that the power to remove those officers who are to aid him in the execution of the laws is an incident of that power; that the Secretary of the Treasury was such an officer; that the custody of the public property and money was an executive function exercised through the Secretary of the Treasury and his subordinates; that in the performance of these duties the Secretary was subject to the supervision and control of the President; and finally that the act establishing the Bank of the United States “did not, as it could not change the relation between the President and Secretary—did not release the former from his obligation to see the law faithfully executed nor the latter from the President’s supervision and control.”735 In short, the President’s removal power, in this case unqualified, was the sanction provided by the Constitution for his power and duty to control his “subordinates” in all their official actions of public consequence.

Footnotes

733
1 Ops. Atty. Gen. 624 (1823). [Back to text]
734
3 J. Richardson, supra at 1288. [Back to text]
735
Id. at 1304. [Back to text]