James Madison Papers
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Removal Power of the President, [19 May] 1789

Removal Power of the President

[19 May 1789]

The House took up the establishment of executive departments. JM moved the creation of foreign affairs, treasury, and war departments. The debate centered on the clause vesting in the president alone the power to remove the officers heading these departments. Smith (South Carolina) contended that impeachment was the only constitutional means of removal.

Mr. Madison Did not concur with the gentleman in his interpretation of the constitution. What said he would be the consequence of such construction? It would in effect establish every officer of the government on the firm tenure of good behaviour, not the heads of departments only, but all the inferior officers of those departments would hold their offices during good behaviour, and that to be judged of by one branch of the legislature only on the impeachment of the other. If the constitution means this by its declarations to be the case we must submit, but I should lament it as a fatal error interwove in the system and one that would ultimately prove its destruction. I think the inference would not arise from a fair construction of the words of that instrument.

It is very possible that an officer who may not incur the displeasure of the president, may be guilty of actions that ought to forfeit his place; the power of this house may reach him by the means of an impeachment, and he may be removed even against the will of the president; so that the declaration in the constitution, was intended as a supplemental security for the good behaviour of the public officers. It is possible the case I have stated may happen; indeed it may perhaps on some occasion be found necessary to impeach the president himself; surely therefore it may happen to a subordinate officer, whose bad actions may be connived at or overlooked by the president; hence the people have an additional security in this constitutional provision.

I think it absolutely necessary that the president should have the power of removing from office; it will make him, in a peculiar manner, responsible for their conduct, and subject him to impeachment himself, if he suffers them to perpetrate with impunity high crimes or misdemeanours against the United States, or neglects to superintend their conduct, so as to check their excesses. On the constitutionality of the declaration I have no manner of doubt.

Cong. Register description begins Thomas Lloyd, comp., The Congressional Register; or, History of the Proceedings and Debates of the First House of Representatives … (2 vols.; New York, 1789; Evans 22203–4). description ends , I, 351–52.

[19 May 1789]

Bland thought the Senate should have the same role in removing as it did in appointing. Jackson favored impeachment, giving the president only a suspending power.

Mr. Madison Did not conceive it was a proper construction of the constitution to say, that there was no other mode of removing from office than that by impeachment; he believed this, as applied to the judges, might be the case, but he could never imagine it extended in the manner which gentlemen contended for. He believed they would not assert, that any part of the constitution declared, that the only way to remove should be by impeachment. The contrary might be inferred, because congress may establish offices by law; therefore, most certainly, it is in the discretion of the legislature to say upon what terms the office shall be held, either during good behaviour, or during pleasure. Under this construction the principles of the constitution would be reconcileable in every part; but under that of the gentleman from South-Carolina, it would be incongruous and faulty. He wondered how the gentleman from Georgia (Mr. Jackson) would reconcile his principles so far as to permit the president to suspend the officer. He begged his colleague (Mr. Bland) to consider the inconvenience his doctrine would occasion, by keeping the senate constantly sitting, in order to give their assent to the removal of an officer; they might see there would be a constant probability of the senate being called upon to exercise this power, consequently they could not be a moment absent: now, he did not believe, the constitution imposed any such duty upon them; why then, said he, shall we enjoin it, especially at such an expence of the public treasure?

Cong. Register description begins Thomas Lloyd, comp., The Congressional Register; or, History of the Proceedings and Debates of the First House of Representatives … (2 vols.; New York, 1789; Evans 22203–4). description ends , I, 354–55.

[19 May 1789]

Mr. Madison. I look upon every constitutional question, whatever its nature may be, of great importance; I look upon the present to be doubly so, because its nature is of the highest moment to the well being of the government. I have listened with attention to the objections which have been stated, and to the replies that have been made; and I think the investigation of the meaning of the constitution, has supported the doctrine I brought forward. If you consult the expediency, it will be greatly against the doctrine advanced by gentlemen on the other side of the question. See to what inconsistency gentlemen drive themselves, by their construction of the constitution. The gentleman from South-Carolina, (Mr. Smith) in order to bring to conviction and punishment an offender in any of the principal offices, must have recourse to a breach of the common law, and yet he may there be found guilty, and maintain his office, because he is fixed by the constitution. It has been said, we may guard against the inconveniency of that construction, by limiting the duration of the office, to a term of years, but during that term, there is no way of getting rid of a bad officer, but by impeachment. During the time this is depending, the person may continue to commit those crimes for which he is impeached, because if his construction of the constitution is right, the president can have no more power to suspend than he has to remove.

What fell from one of my colleagues (Mr. Bland) appears to have more weight, than any thing hitherto suggested. The constitution at the first view, may seem to favor his opinion; but that must be the case only at the first view, for if we examine it, we shall find his construction incompatible with the spirit and principles, contained in that instrument.

It is said, that it comports with the nature of things, that those who appoint, should have the power of removal, but I cannot conceive that this sentiment is warranted by the constitution; I believe it would be found very inconvenient in practice. It is one of the most prominent features of the constitution, a principle that pervades the whole system, that there should be the highest possible degree of responsibility in all the executive officers thereof; any thing therefore which tends to lessen this responsibility is contrary to its spirit and intention, and unless it is saddled upon us expressly by the letter of that work, I shall oppose the admission of it into any act of the legislature. Now, if the heads of the executive departments are subjected to removal by the president alone, we have in him security for the good behaviour of the officer: If he does not conform to the judgment of the president, in doing the executive duties of his office, he can be displaced; this makes him responsible to the great executive power, and makes the president responsible to the public for the conduct of the person he has nominated and appointed to aid him in the administration of his department; but if the president shall join in a collusion with this officer, and continue a bad man in office, the case of impeachment will reach the culprit, and drag him forth to punishment. But if you take the other construction, and say, he shall not be displaced, but by and with the advice and consent of the senate, the president is no longer answerable for the conduct of the officer; all will depend upon the senate. You here destroy a real responsibility without obtaining even the shadow; for no gentleman will pretend to say, the responsibility of the senate can be of such a nature as to afford substantial security. But why, it may be asked, was the senate joined with the president in appointing to office, if they have no responsibility? I answer, merely for the sake of advising, being supposed, from their nature, better acquainted with the characters of the candidates than an individual; yet even here the president is held to the responsibility he nominates, and with their consent appoints; no person can be forced upon him as an assistant by any other branch of the government.

There is another objection to this construction, which I consider of some weight, and shall therefore mention to the committee. Perhaps there was no argument urged with more success, or more plausibly grounded, against the constitution, under which we are now deliberating, than that founded on the mingling of the executive and legislative branches of the government in one body. It has been objected, that the senate have too much of the executive power even, by having a controul over the president in the appointment to office. Now, shall we extend this connection between the legislative and executive departments, which will strengthen the objection, and diminish the responsibility we have in the head of the executive? I cannot but believe, if gentlemen weigh well these considerations, they will think it safe and expedient to adopt the clause.

Cong. Register description begins Thomas Lloyd, comp., The Congressional Register; or, History of the Proceedings and Debates of the First House of Representatives … (2 vols.; New York, 1789; Evans 22203–4). description ends , I, 360–62. By a large majority the Committee of the Whole declared in favor of the president’s having the sole power of removal.

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