America's Unwritten Constitution: The Precedents and Principles We Live By (95 page)

         
True, the 1789 statute establishing the Treasury Department did not explicitly describe it as an “executive department”—unlike earlier statutes denominating the “executive” Department of Foreign Affairs (later renamed the “executive” Department of State) and the “executive” Department of War. But only days after creating the Treasury, Congress enacted yet another statute, the Salary Act of 1789, whose title explicitly referred to Treasury officers as “executive” officers no different from those in the other executive departments. Act of Sept. 11, 1789, 1 Stat. 67. True, Congress described the treasury secretary as a “head” while describing the secretary of each of the other two departments as a “principal officer,” but once again the two labels were in effect synonyms: The ensemble of 1789 statutes explicitly recognized that all three secretaries were removable at will by the president. See infra n. 13. Both Hamilton and Washington clearly understood that Hamilton was an executive department principal officer who answered to Washington under the opinions clause. See Hamilton’s “Opinion as to the Constitutionality of the Bank of the United States,” in John C. Hamilton, ed.,
The Works of Alexander Hamilton
(1851), 4:104 (beginning his now-famous opinion of Feb. 23, 1791, by referring to the fact that Washington had issued an “order” to him—presumably under the opinions clause—to provide the president with his views regarding the bank bill). In
McCulloch
, John Marshall specifically described Hamilton’s role as a key member of Washington’s
“executive
cabinet.”
McCulloch v. Maryland
, 17 U.S. 316, 402 (1819) (emphasis added).

13
  See Act of July 27, 1789, 1 Stat. 28, 29 (secretary of foreign affairs—later renamed secretary of state); Act of Aug. 7, 1789, 1 Stat. 49, 50 (secretary of war); Act of Sept. 2, 1789, 1 Stat. 65, 67 (secretary of treasury). See also Act of Aug. 7, 1789, 1 Stat. 50, 53 (recognizing presidential removal power over territorial officers). See Saikrishna Prakash, “New Light on the Decision of 1789,”
Cornell LR
91 (2006): 1021. On Hamilton’s change of heart, see George C. Rogers Jr., ed., “The Letters of William Loughton Smith to Edward Rutledge,”
South Carolina History Magazine
69 (1968): 1, 6–8 (reprinting letter of June 21, 1789; also reprinted in Charlene Bangs Bickford et al., eds.,
Documentary History of the First Federal Congress
(2004), 16:831, 832–833).

14
  The Federal Reserve Board was created in 1913; the restrictions on presidential removal at will were added to the statute in 1935. Act of Aug. 23, 1935, sec. 203(b), 49 Stat. 684, 704–705 (giving board members fourteen-year terms “unless sooner removed for cause by the President”). A later statutory change eliminated the president’s ability to unilaterally designate the chairman of the Federal Reserve Board; the statutory revision requires a separate nomination and confirmation for the four-year position of chairman of the board. Act of Nov. 16, 1977, sec. 204(a), 91 Stat. 1388.

15
  This suggestion is offered up as a friendly alternative to the approach advocated by Justice Scalia in
Freytag v. Commissioner
, 501 U.S. 868, 920–922 (1991) (Scalia, J., concurring in part and concurring in the judgment, joined by O’Connor, Kennedy, and Souter, JJ.), an approach recently embraced by a Court majority in
Free Enterprise Fund v. Public Company Accounting Oversight Board
, 130 S. Ct. 3138 (2010).

16
  The Supreme Court has recently embraced this approach. See supra n. 15. On alternative interpretations of the Decision of 1789, cf. Jerry L. Mashaw, “Governmental Practice and Presidential Direction: Lessons from the Antebellum Republic?,”
Willamette LR
45 (2009): 659, 663 (“deriving uncontested meaning from the practice of any period is almost impossible”).

17
  For more on the Federal Reserve and other so-called independent agencies, see Chapter 9.

18
  For Madison’s remarks, see
Annals
, 1:514 (June 17, 1789). Regarding ornery presidents from Tennessee, the facts are as follows. In 1833, Andrew Jackson fired his treasury secretary, William Duane, who had defied presidential directives concerning the Bank of the United States. In response, various senators assailed Jackson and urged Congress to repudiate the Decision of 1789. See, e.g.,
Reg. Deb
., 10:834–836 (March 7, 1834, statements and proposed resolutions of Sen. Henry Clay). No repudiationist legislation ensued, but in March 1834 the Senate passed a resolution censuring Jackson for his general conduct vis-à-vis the bank without specific mention of his removal of Duane. Ibid., 1187 (March 28, 1834). On April 15, 1834, Jackson countered with a blistering protest message insisting, among other things, that the Decision of 1789 had settled the removal question. Jackson described the Decision of 1789 as “a full expression of the sense of the Legislature” supported by “the concurrent authority of President Washington, of the Senate, and the House of Representatives, numbers of whom had taken an active part in the convention which framed the Constitution and in the State conventions which adopted it.” Jackson also invoked the “numerous removals made by” his predecessors in pursuance of the Decision of 1789. In early 1836, the man whom Jackson had initially picked to replace Duane at Treasury, Roger Taney, was confirmed by the Senate as the nation’s fifth chief justice, and in early 1837 the Senate expunged its earlier censure resolution. See ibid., 13:504–505 (Jan. 16, 1837). In 1867, over the veto of President Andrew Jackson—oops, Johnson—Congress enacted a Tenure of Office Act that in certain instances required the president to win Senate approval before firing executive department heads. Act of March 2, 1867, 14 Stat. 430. Roughly a third of Johnson’s veto message—the first third—focused
almost entirely on the Decision of 1789.
CG
, 39-1:1964–1966 (March 2, 1867). Johnson also stressed an unbroken tradition of practice honoring this Decision. Johnson later unilaterally dismissed Secretary of War Edwin Stanton. The House impeached him for this alleged statutory violation and for his more general defiance and obstruction of duly enacted Reconstruction legislation. Johnson was acquitted by the Senate in 1868, and in 1887 Congress repealed the 1867 act. See Act of March 3, 1887, ch. 353, 24 Stat. 500.

         In
Myers v. United States
, a landmark 1926 decision authored by Chief Justice (and former president) William Howard Taft, the Supreme Court emphatically reaffirmed the Decision of 1789 and proclaimed the defunct 1867 act unconstitutional in the course of invalidating another law, enacted in 1876, that obliged the president to win Senate approval before removing postmasters. Although later cases have limited
Myers
by allowing statutes to insulate various non-cabinet officials wielding quasi-judicial authority from at-will removal—see, e.g.,
Humphrey’s Executor v. United States
, 295 U.S. 602 (1935)—the core of
Myers
has remained rock-solid, and the case continues to be cited with approval by all the members of the modern Court—left, right, and center. Thus, the Court, citing
Myers
, has forcefully insisted that, outside the impeachment context, neither the Senate, nor Congress as a whole, nor any other subpart may play any role in the removal of any executive-branch officers. This insistence is self-consciously in keeping with the Decision of 1789 and contra
The Federalist
No. 77. See, e.g.,
Free Enterprise Fund v. Public Company Accounting Oversight Board
, 130 S. Ct. 3138 (2010) (citing the “landmark case” [p. 3152] of
Myers
early and often in both majority and dissenting opinions); ibid., 3153 n. 3 (opinion of the Court, per Roberts, C.J., declaring that the legislative-veto aspect of the 1867 Tenure of Office Act is today “universally regarded” as unconstitutional); ibid., 3151–3152 (“‘Th[e] Decision of 1789 provides contemporaneous and weighty evidence of the Constitution’s meaning since many of the Members of the First Congress had taken part in framing that instrument.’ And it soon became the ‘settled and well understood construction of the Constitution.’”) (quoting previous cases; citations omitted);
Morrison v. Olson
, 487 U.S. 654, 685–686 (1988) (citing
Myers
with strong approval for the proposition that “Congress’ attempt to involve itself in the removal of an executive official [is] sufficient grounds to render [a] statute invalid”). Outside the Court, there is likewise a broad political consensus today—in both the legislative and executive branches and in both political parties—that cabinet officers serve at the pleasure of the president.

19
  Act of Sept. 24, 1789, sec. 35, 1 Stat. 73, 92–93.

20
  See Jackson Turner Main,
The Upper House in Revolutionary America, 1767–1788
(1967).

21
  On Washington’s early use of war councils, see David McCullough, 7776 (2005). On his ideal of nonpartisanship, see Glenn A. Phelps,
George Washington and American Constitutionalism
(1993); Ralph Ketcham,
Presidents Above Party: The First American Presidency
, 1789–1829 (1987). Note that Washington also sought advice early on from the Senate and the Supreme Court, but with less success. On the Senate, see text accompanying nn. 27–28; on the Court, see infra n. 22.

22
  It’s worth repeating a point from Chapter 1: Faithful constitutionalists should not draw broad negative inferences from the terse text absent particular good reasons for doing so—reasons, for example, derived from the specific historical understanding of the text as it was being ratified or from general considerations of constitutional structure. The opinions clause offers an apt case study. Although it would make little sense to infer that presidents may never seek advice (even informally) from persons other than cabinet heads, it does make sense—good structural sense—to infer that presidents may not compel formal advice from federal judges. Unlike cabinet heads, judges are not part of the executive branch and are not unilaterally removable by the chief executive. Judges are supposed to be independent, and thus they emphatically do not answer to the president as do his executive department heads. In this respect, the opinions-clause text and the Constitution’s overall structure marked a decisive break with English practice, whereby judges served on the monarch’s Privy Council. In the summer of 1793, justices of the Supreme Court interpreted the text of the opinions clause in precisely this negative-implication fashion when they wrote a private letter to President Washington firmly declining to furnish him ex parte advice even though he had requested their views about various treaty-law and international-law issues precipitated by the French Revolution. In rejecting Washington’s request, the justices noted that “the Lines of Separation drawn by the Constitution between the three Departments of government,” and the fact that the branches were “in certain Respects checks on each other,” were “strong arguments” against judicial participation in what would later be referred to as the president’s kitchen cabinet—”especially as the Power given by the Constitution to the President, of calling on the Heads of Departments for opinions, seems to have been
purposely
as well as expressly united to the
executive
Departments” as pointedly distinct from the judiciary (emphasis in original). Hamilton,
Papers
, 15:111 (excerpting July 20, 1793, letter of John Jay, James Wilson, James Iredell, and William Paterson to President Washington). This now-famous episode in effect glossed the text, and its lessons have been studiously followed ever since by lawyers and judges. Here we see yet another Washington-era precedent resolving an arguable ambiguity in the written Constitution and operating thereafter with a kind of peremptory argument-ending legal force akin to that of a relatively clear textual provision. As this episode illustrates, the Washington-era precedents that have endured did not simply result from unilateral executive actions but instead reflected interbranch settlements in which other branches sometimes embraced executive initiatives and sometimes resisted them.

23
  
Elliot’s Debates
, 4:108 (Iredell) (“He is only to consult them if he thinks proper”);
Farrand’s Records
, 2:329 (Pinckney) (“[T]he President shd. Be authorized to call for advice or not as he might chuse”).

24
  “Observations on George Mason’s Objections to the Federal Constitution,” in Ford,
Pamphlets
, 348. For a similar statement behind closed doors at Philadelphia, see
Farrand’s Records
, 2:542 (Gouverneur Morris) (“The question of a Council was considered in the Committee, where it was judged that the Presidt. by persuading his Council—to concur
in his wrong measures, would acquire their protection for them”). For more evidence and analysis, see Amar,
ACAB
, 197–198 and sources cited therein.

25
  See Leonard D. White,
The Federalists: A Study in Administrative History
(1961), 41 (“Although Washington uniformly asked for advice, he retained the power to decide all matters except… when away from the seat of government. Cabinet opinions were not infrequently divided.…Washington did not debate a case with advisors, but listened to their arguments or read their written opinions and then decided the issue.”). In a June 12, 1807, letter to William Short, Jefferson claimed that as president he had never overruled his cabinet even though a president “certainly” had a right to do so, and colorfully noted, “[M]y predecessor [Adams] sometimes decided things against his counsel
[sic
—council] by dashing and trampling his wig on the floor.” Paul Leicester Ford, ed.,
The Works of Thomas Jefferson
(1905), 10:414. For an account of President Adams’s decision to pardon the convicted traitor John Fries despite the unanimous advice of his cabinet to execute Fries, see John Quincy Adams and Charles Francis Adams,
The Life of John Adams
(1871), 2:314–318. This account makes no mention of trampled wigs. For a description of Washington’s practices emphasizing the first president’s personal control over department heads, see Jefferson’s own Nov. 6, 1801, Circular to Department Heads, in Jefferson,
Papers
, 35:576–578.