Removal Power of the President
[18 June 1789]
The removal clause in the bill establishing a foreign affairs department was still under consideration.
Mr. Madison. The question now seems to be brought to this, whether it is proper or improper to retain these words in the clause, provided they are explanatory of the constitution. I think this branch of the legislature is as much interested in the establishment of the true meaning of the constitution, as either the president or senate; and when the constitution submits it to us to establish offices by law, we ought to know by what tenure the office should be held; and whether it should depend upon the concurrence of the senate with the president, or upon the will of the president alone; because gentlemen may hesitate in either case, whether they will make it for an indefinite or precise time; if the officer can be removed at discretion by the president, there may be safety in letting it be for an indefinite period. If he cannot exert his prerogative, there is no security even by the mode of impeachment; because the officer may intrench himself behind the authority of the senate, and bid defiance to every other department of government. In this case the question of duration would take a different turn. Hence it is highly proper that we and our constituents should know the tenure of the office. And have we not as good a right as any branch of the government to declare our sense of the meaning of the constitution?
Nothing has yet been offered to invalidate the doctrine, that the meaning of the constitution may as well be ascertained by the legislative as by the judicial authority. When a question emerges as it does in this bill, and much seems to depend upon it, I should conceive it highly proper to make a legislative construction. In another point of view it is proper that this interpretation should now take place, rather than at a time when the exigency of the case may require the exercise of the power of removal. At present the disposition of every gentleman is to seek the truth, and abide by its guidance when it is discovered. I have reason to believe the same disposition prevails in the senate. But will this be the case when some individual officer of high rank draws into question the capacity of the president, with the senate, to effect his removal? If we leave the constitution to take this course, it can never be expounded until the president shall think it expedient to exercise the right of removal, if he supposes he has it; then the senate may be induced to set up their pretensions: And will they decide so calmly as at this time, when no important officer in any of the great departments is appointed to influence their judgments? The imagination of no member here, or of the senate, or of the president himself, is heated or disturbed by faction: If ever a proper moment for decision should offer, it must be one like the present.
I do not conceive that this question has been truly stated by some gentlemen. In my opinion it is not, whether we shall take the power from one branch of the government and give it to another—but the question is, to which branch has the constitution given it. Some gentlemen have said that it resides in the people at large; and that if it is necessary to the government, we must apply to the people for it, and obtain it by way of amendment to the constitution. Some gentlemen contend, that although it is given in the constitution as a necessary power to carry into execution the other powers vested by the constitution, yet it is vested in the legislature. I cannot admit this doctrine either; because it is setting the legislature at the head of the executive branch of the government. If we take the other construction, of the gentleman from South-Carolina, that all officers hold their places by the firm tenure of good behavior, we shall find it still more improper. I think gentlemen will see, upon reflection, that this doctrine is incompatible with the principles of free government. If there is no removability but by way of impeachment, then all the executive officers of government hold their offices by the firm tenure of good behavior, from the chief justice down to the tide-waiter.
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, 562–64.