If the law casts a duty upon a head of department eo nomine, does the President thereupon become entitled by virtue of his duty to “take Care that the Laws be faithfully executed,” to substitute his own judgment for that of the principal officer regarding the discharge of such duty? In the debate in the House in 1789 on the location of the removal power, Madison argued that it ought to be attributed to the President alone because it was “the intention of the Constitution, expressed especially in the faithful execution clause, that the first magistrate should be responsible for the executive department,” and this responsibility, he held, carried with it the power to “inspect and control” the conduct of subordinate executive officers. “Vest,” said he, “the power [of removal] in the Senate jointly with the President, and you abolish at once the great principle of unity and responsibility in the executive department, which was intended for the security of liberty and the public good.”729
But this was said with respect to the office of the Secretary of State, and when shortly afterward the question arose as to the power of Congress to regulate the tenure of the Comptroller of the Treasury, Madison assumed a very different attitude, conceding in effect that this office was to be an arm of certain of Congress’s own powers and should therefore be protected against the removal power.730 And in Marbury v. Madison,731 Chief Justice Marshall traced a parallel distinction between the duties of the Secretary of State under the original act which had created a “Department of Foreign Affairs” and those which had been added by the later act changing the designation of the department to its present one. The former were, he pointed out, entirely in the “political field,” and hence for their discharge the Secretary was left responsible absolutely to the President. The latter, on the other hand, were exclusively of statutory origin and sprang from the powers of Congress. For these, therefore, the Secretary was “an officer of the law” and “amenable to the law for his conduct.”732
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.
The Court’s 1838 decision in Kendall v. United States ex rel. Stokes,736 shed more light on congressional power to mandate actions by executive branch officials. The United States owed Stokes money, and when Postmaster General Kendall, at Jackson’s instigation, refused to pay it, Congress passed a special act ordering payment. Kendall, however, still proved noncompliant, whereupon Stokes sought and obtained a mandamus in the United States circuit court for the District of Columbia, and on appeal this decision was affirmed by the Supreme Court. Although Kendall, like Marbury v. Madison, involved the question of the responsibility of a head of a department for the performance of a ministerial duty, the discussion by counsel before the Court and the Court’s own opinion covered the entire subject of the relation of the President to his subordinates in the performance by them of statutory duties. The lower court had asserted that the duty of the President under the faithful execution clause gave him no other control over the officer than to see that he acts honestly, with proper motives, but no power to construe the law and see that the executive action conforms to it. Counsel for Kendall attacked this position vigorously, relying largely upon statements by Hamilton, Marshall, James Wilson, and Story having to do with the President’s power in the field of foreign relations.
The Court rejected the implication with emphasis. There are, it pointed out, “certain political duties imposed upon many officers in the executive department, the discharge of which is under the direction of the President. But it would be an alarming doctrine, that Congress cannot impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the Constitution; and in such cases the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the President. And this is emphatically the case, where the duty enjoined is of a mere ministerial character.”737 In short, the Court recognized the underlying question of the case to be whether the President’s duty to “take Care that the Laws be faithfully executed” made it constitutionally impossible for Congress ever to entrust the construction of its statutes to anybody but the President, and it answered this in the negative.
How does this issue stand today? The answer to this question, so far as there is one, is to be sought in a comparison of the Court’s decision in Myers, on the one hand, and its decision in Morrison, on the other.738 The first decision is still valid to support the President’s right to remove, and hence to control the decisions of, all officials through whom he exercises the great political powers which he derives from the Constitution, and also to remove many but not all officials—usually heads of departments— through whom he exercises powers conferred upon him by statute. Morrison, however, recasts Myers to be about the constitutional inability of Congress to participate in removal decisions. It permits Congress to limit the removal power of the President, and those acting for him, by imposition of a “good cause” standard, subject to a balancing test. That is, the Court now regards the critical issue not as what officials do, whether they perform “purely executive” functions or “quasi” legislative or judicial functions, though the duties and functions must be considered. Rather, the Courts must “ensure that Congress does not interfere with the President’s exercise of the ‘executive power’ ” and his constitutionally appointed duty under Article II to take care that the laws be faithfully executed.739 Thus, the Court continued, Myers was correct in its holding and in its suggestion that there are some executive officials who must be removable by the President if he is to perform his duties.740 On the other hand, Congress may believe that it is necessary to protect the tenure of some officials, and if it has good reasons not limited to invasion of presidential prerogatives, it will be sustained, provided the removal restrictions are not of such a nature as to impede the President’s ability to perform his constitutional duties.741 The officer in Morrison, the independent counsel, had investigative and prosecutorial functions, purely executive ones, but there were good reasons for Congress to secure her tenure and no showing that the restriction “unduly trammels” presidential powers.742
The “bright-line” rule previously observed no longer holds. Now, Congress has a great deal more leeway in regulating executive officials, but it must articulate its reasons carefully and observe the fuzzy lines set by the Court.
This matter also came to a head in “the reign of An- drew Jackson,” preceding, and indeed foreshadowing, the Duane episode by some months. “At that epoch,” Wyman relates in his Principles of Administrative Law, “the first amendment of the doctrine of centralism in its entirety was set forth in an obscure opinion upon an unimportant matter—The Jewels of the Princess of Orange, 2 Opin. 482 (1831). These jewels . . . were stolen from the Princess by one Polari and were seized by the officers of the United States Customs in the hands of the thief. Representations were made to the President of the United States by the Minister of the Netherlands of the facts in the matter, which were followed by a request for return of the jewels. In the meantime the District Attorney was prosecuting condemnation proceedings in behalf of the United States which he showed no disposition to abandon. The President felt himself in a dilemma, whether if it was by statute the duty of the District Attorney to prosecute or not, the President could interfere and direct whether to proceed or not. The opinion was written by Taney, then Attorney General; it is full of pertinent illustrations as to the necessity in an administration of full power in the chief executive as the concomitant of his full responsibility. It concludes: If it should be said that, the District Attorney having the power to discontinue the prosecution, there is no necessity for inferring a right in the President to direct him to exercise it—I answer that the direction of the President is not required to communicate any new authority to the District Attorney, but to direct him in the execution of a power he is admitted to possess. The most valuable and proper measure may often be for the President to order the District Attorney to discontinue prosecution. The District Attorney might refuse to obey the President’s order; and if he did refuse, the prosecution, while he remained in office, would still go on; because the President himself could give no order to the court or to the clerk to make any particular entry. He could only act through his subordinate officer, the District Attorney, who is responsible to him and who holds his office at his pleasure. And if that officer still continues a prosecution which the President is satisfied ought not to continue, the removal of the disobedient officer and the substitution of one more worthy in his place would enable the President through him faithfully to execute the law. And it is for this among other reasons that the power of removing the District Attorney resides in the President.”743
- 1 ANNALS OF CONG. 495, 499 (1789). [Back to text]
- Id. at 611–612. [Back to text]
- 5 U.S. (1 Cr.) 137 (1803). [Back to text]
- 5 U.S. (1 Cr.) at 165–66. [Back to text]
- 1 Ops. Atty. Gen. 624 (1823). [Back to text]
- 3 J. Richardson, supra at 1288. [Back to text]
- Id. at 1304. [Back to text]
- 37 U.S. (12 Pet.) 524 (1838). [Back to text]
- 37 U.S. (12 Pet.) at 610. [Back to text]
- Myers v. United States, 272 U.S. 52 (1926); Morrison v. Olson, 487 U.S. 654 (1988). [Back to text]
- Morrison v. Olson, 487 U.S. at 689–90. [Back to text]
- 487 U.S. at 690–91. [Back to text]
- 487 U.S. at 691. [Back to text]
- 487 U.S. at 691–92. [Back to text]
- B. WYMAN, THE PRINCIPLES OF THE ADMINISTRATIVE LAW GOVERNING THE RELATIONS OF PUBLIC OFFICERS 231–32 (1903). [Back to text]