America's Unwritten Constitution: The Precedents and Principles We Live By (54 page)

Textual fine points aside, Washington’s practice honored the animating spirit of the opinions clause, whose thrust was to concentrate accountability for presidential action on the president himself. No matter how Congress might choose to contour various executive departments and offices beneath the president, the president needed to serve as the legal hub of the executive inner circle and the apex of the executive pyramid. Even if a president chose to consult his department heads en masse, their collective judgment would not thereby trump his own. In sharp contrast to many state governors who constitutionally had to win the votes of council majorities for various proposed gubernatorial initiatives, the president would be his own man. Although the clause invited him to solicit the opinions of
his department heads, it pointedly did not oblige him to do so. (Hence the phrase “the President…may require” rather than “the President…shall require.”) Ultimately, the president would oversee lieutenants who answered to him—not vice versa.
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This was the big idea behind the opinions clause, which underscored that a president could never claim that his hands were tied because he had been outvoted or overridden by his advisers in a secret conference. In
The Federalist
No. 70, Hamilton/Publius explained that “one of the weightiest objections to a plurality in the executive…is that it tends to conceal faults, and destroy responsibility.…It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or a series of pernicious measures[,] ought really to fall.” According to Publius, a chief executive in a badly designed council system could always claim, truthfully or not—for the public could never be sure who had done what behind closed doors—that “I was overruled by my council” or that “The council were so divided in their opinions that it was impossible to obtain any better resolution on the point.”

Though Publius in this passage did not explicitly quote the opinions clause, his telling use of the word “opinions” drove home the central purpose of this clause: to prevent presidents from evading blame by hiding behind the opinions of advisers meeting in private. As future justice James Iredell stressed with italics in his own ratification-era publication, the opinions clause would fix public attention where it belonged. “The President must be
personally responsible
for everything.” In more modern parlance, the buck stops with him.
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Nothing in Washington’s generous consultative practice violated this core principle, even as it did drift toward a collective model of advice-seeking. Everyone from Washington on down understood that even if he chose to poll various department heads or to confer with them en masse on important issues, and even if he often chose to follow their collective wisdom, he nevertheless remained personally responsible for the final decision. Legally and politically, the buck did indeed stop with him.
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TO SOME EXTENT,
the cabinet’s rise came at the Senate’s expense.

Before the American Revolution, the upper legislative chamber in most colonies had officially doubled as the governor’s executive council. After 1776, many states had either continued this double-duty system or had created new executive councils composed of select members of the upper house.
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As Americans pondered the proposed Constitution in 1787–1788, it seemed natural enough to many ratifiers that U.S. senators would likely play a broadly similar role vis-à-vis the president. After all, the Constitution twice spoke of the Senate as a body that would give the chief executive its “Advice and Consent”—first in the context of making treaties, and second in the context of appointing federal officers. Beyond the consultative ring of this phrase, the brute fact that presidents would ultimately need to secure senatorial approval for various executive initiatives made it plausible to predict that presidents would confer with senators early and often. Also, senators would sit as judges and jurors in any presidential impeachment trial that might occur. A cautious president would thus have yet another reason to invite senators into his confidence at the earliest opportunity: If senators were to informally approve various presidential initiatives as they were occurring, it would be harder for these counselors to later convict the chief executive of misconduct.

George Washington had little to fear from an impeachment court. Nevertheless, his natural inclination toward consultation and consensus-building prompted him to seek the Senate’s advice in consiliary fashion early in his administration. In a tragicomic episode whose clumsy choreography ultimately exposed the structural inaptness of the Senate as an ideal executive council, both president and Senate tried to lead the dance, and despite honorable intentions all around, each stepped on the other’s toes.

The dance began on a Saturday in August 1789 when Washington went in person to the Senate chamber. He sought the Senate’s quick approval of instructions that had been drafted for a team of American negotiators preparing to parley with southern Indian tribes. Many senators, reasonably enough, wanted a little time to ponder the policy issues being presented to
them. Some members felt intimidated by Washington’s very presence and were bent on setting a proper precedent of senatorial autonomy. Recording his anxieties in his private journal, Pennsylvania Senator William Maclay worried that if senators said yes to the president too quickly, “we should have these advices and consents ravished, in a degree, from us.…I saw no chance of a fair investigation of subjects while the President of the United States sat there…to support his opinions and overawe the timid and neutral part of the Senate.”
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As it became clear from the meandering drift of the proceedings that the upper house would postpone the matter until Monday, a visibly impatient Washington voiced his frustration: “
This defeats every purpose of my coming here
!” Regaining his composure, Washington withdrew from the room and politely returned the next Monday, at which time he secured the approval he sought, but only after being obliged to endure hours of tedious talk. According to one account—perhaps too juicy to be true—as Washington left the chamber he was heard to say that “he would be damned if he ever went there again.”
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In fact, Washington never again darkened the Senate’s door to seek advice or consent in person. Nor did he always solicit the Senate’s written advice before making momentous decisions, even decisions (for example, in treaty negotiations) that he knew would later require him to win formal senatorial approval.

The mismatch that first became apparent in August 1789 went far beyond the delicate issues of host-guest etiquette raised by the physical separation of powers between the president’s regular place of business and the Senate’s. Nor was the mismatch simply a function of the special admiration and fear that Washington inspired by his mere presence in a room. Had these been the only impediments to a close consultative partnership between president and Senate, a frequent practice of written advice-seeking and advice-giving between Washington and the upper chamber should have emerged. It did not. Instead, Washington increasingly turned to his department heads as his sounding board, and Washington’s successors have all followed suit. For more than two centuries, America’s actual institutional constitution has featured the cabinet and not the Senate as the president’s de facto council. (Note that in August 1789, the advice-hungry
Washington did not have the option of seeking counsel from his handpicked department heads, for the simple reason that these heads had yet to be nominated, confirmed, commissioned, and sworn in—a process that would begin a few weeks later.)

With the benefit of hindsight and structural analysis—and with special attention to the ramifications of the Decision of 1789—we can see several reasons for this shift from Senate to cabinet as the president’s preferred advisory body. For starters, the Senate was too crowded to facilitate a genuinely intimate conversation. Most colonies had featured councils of twelve members, and virtually all revolutionary state councils were in the same range or smaller. By contrast, when Washington took office he faced a twenty-two-seat Senate, and by the time he left office the upper chamber had swelled to thirty-two seats, with many more future members imaginable on the western horizon in the years to come. After experimenting with different ways of handling the Senate, Washington eventually settled into a practice in which informal exchanges with a handful of trusted senators occasionally substituted for formal consultations with the entire upper chamber.
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Whereas senators answered to state legislatures, department heads answered to presidents. This difference had huge implications. Consider, for example, the need for strict confidentiality. An effective presidential advisory body dealing with sensitive issues of diplomacy, appointment policy, and the like will often have to keep a secret. Every member of the advisory body must cooperate: A single leak can sometimes sink a project. Not only was the Senate awkwardly large even in 1789, but each senator ultimately answered to a constituency wholly independent of the president. A leak from a political skeptic of the president might actually enhance the leaker’s standing with state legislators back home, even as it compromised the national interest as understood by the president. If a department head spilled a secret, the president could deal with him severely. Thanks to the Decision of 1789, the leaker could be sacked and shamed immediately, and President Washington only had to consult his own conscience. He had no comparable control over a loose-lipped senator.

In early 1792, Secretary of State Jefferson recorded in his diary that “[t]he President had no confidence in the secresy [
sic
] of the Senate.” The
following February, when Washington asked his cabinet whether he should give senators details of his negotiating strategy vis-à-vis northern Indians, his confidants—composed entirely of Senate confirmees—unanimously advised against an early Senate briefing. According to Jefferson, “We all thought if the Senate should be consulted & consequently apprized of our line, it would become known to Hammond [a British diplomat with ties to the Indians], & we should lose all chance of saving anything more at the treaty than our Ultimatum.” After Virginia’s senator, Stevens Thomson Mason, violated Senate rules by handing the official text of the Jay Treaty to the press in 1795—and was not even censured by the upper chamber—Washington’s early doubts hardened.
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Consider also the need for speed. A council works best when its members are physically proximate enough to confer in person or quickly exchange written messages. But senators hoping to be reelected—or merely hoping to explain and defend their political conduct to those who had elected them—needed to spend time in their home states. It would be a genuine political hardship for senators to be required to sit permanently in the national capital as an on-call executive council. By contrast, department heads would naturally need to remain in place to discharge their ordinary executive functions.

Here, too, the Decision of 1789 influenced the incentives. Had Congress in 1789 decided, with Washington’s assent, that department heads could be fired only if both the president and the Senate agreed that removal was warranted, each head would have had reason to curry favor with leading senators—perhaps senators from the head’s home state, or senators with a special policy interest in his particular department. Department heads in such an alternative universe might even have been tempted to routinely leave the national seat in order to lobby the home legislatures of their senatorial patrons. But in the actual universe created by the Decision of 1789, department heads seeking to keep their jobs have as a rule needed to please the president and only the president—not some prominent senator or some influential state legislature.
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Precisely because presidents over the centuries have understood all this, these chief executives have been more willing to confide in department heads than they might otherwise have been. The Decision of 1789
encouraged the emergence of a substitute body of counselors—secretaries rather than senators—who would be well positioned to evaluate presidential behavior on an ongoing basis and to sound a public alarm, via mass resignations or some other appropriate act, if a president ever revealed himself to be unfit. Thus, even as the Decision of 1789 strongly reaffirmed the unilateral powers of a unitary executive, Congress also subtly cabined those powers with…a cabinet.
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Thanks to the Decision of 1789, fledgling federal institutions sensibly specialized. Senators were free to periodically return home to reconnect with their constituents, secure in the knowledge that distinguished—senatorially approved!—figures would remain in the capital city to monitor and advise the president during the senatorial recess. Department heads concentrated on administering the government without the temptation to routinely abandon their posts in order to bolster their job security. And each president, beginning with Washington, has been free to confide in a council of genuinely trustworthy advisers while properly remaining personally responsible for various decisions vested by the Constitution and statutes in him and him alone.
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THE CONSTITUTION’S GENERALLY TERSE TEXT
turns especially terse in Article II. The laconic language governing the presidency can plausibly be read in various ways. But in actual presidential practice over the centuries on a wide range of issues, the written words of Article II have been read in one quite particular way—a way that is consistent with, but by no means compelled by, the plain meaning of the words alone, a way powerfully influenced by the first president’s first precedents. To understand the full meaning of Article II over the course of American history, we must read its words through a special set of lenses—the spectacles of George Washington.