James Madison Papers

Removal Power of the President, [22 June] 1789

Removal Power of the President

[22 June 1789]

The bill establishing a department of foreign affairs was still being debated in the Committee of the Whole. On 19 June the motion to strike out the clause, “to be removable from office by the President,” was defeated. The objection arose, however, that this clause had the appearance of being a grant of power by the legislature. To avoid this difficulty, Benson moved that whenever the secretary “shall be removed by the President,” the chief clerk should have custody of the department records. After this motion (implying the president’s removal power) carried, the original clause became unnecessary. Benson then moved to strike this clause.

Mr. Madison. I am in favour of the motion for striking out; but not upon the principles of my worthy colleague. I will briefly state my reasons for voting in the manner I intend. First, altering the mode of expression tends to give satisfaction to those gentlemen who think it not an object of legislative discretion: and second, because the amendment already agreed to, fully contains the sense of this house upon the doctrine of the constitution—and therefore the words are unnecessary as they stand here. I will not trouble the house with repeating the reasons why the change of expression is best, as they are well understood. But gentlemen cannot fairly urge against us a change of ground, because the point we contended for is fully obtained by the amendment. It was said truly by the gentleman from New-York (Mr. Benson), that these words carry with them an implication that the legislature has the power of granting the power of removal.

It is needless to assign my reasons why I think the legislature not in possession of this power; they were fully explained before. I therefore shall only say, if there is a principle in our constitution, indeed in any free constitution, more sacred than another, it is that which separates the legislative, executive and judicial powers; if there is any point in which the separation of the legislative and executive powers ought to be maintained with greater caution, it is that which relates to officers and offices. The powers relative to offices, are partly legislative and partly executive. The legislature creates the office, defines the powers, limits its duration, and annexes a compensation. This done, the legislative power ceases. They ought to have nothing to do with designating the man to fill the office. That I conceive to be of an executive nature. Although it be qualified in the constitution, I would not extend or strain that qualification beyond the limits precisely fixed for it. We ought always to consider the constitution with an eye to the principles upon which it was founded. In this point of view, we shall readily conclude that if the legislature determines the powers, the honors and emoluments of an office, we should be insecure if they were to designate the officer also. The nature of things restrains and confines the legislative and executive authorities in this respect; and hence it is that the constitution stipulates for the independence of each branch of the government.

Let it be understood that the Legislature is to have some influence both in appointing and removing officers; and I venture to say the people of America will justly fear a system of sinecures. What security have they but offices will be created to accommodate favorites or pensioners subservient to their designs? I never did conceive that so far as the constitution gave one branch of the legislature an agency in this business, that by any means it was one of its most meritorious parts; but so far as it has gone, I confess I would be as unwilling to abridge the power of that body, as to enlarge it. But considering, as I do, that the constitution fairly vests the president with the power, and that the amendment declares this to be the sense of the house, I shall concur with the gentleman in opposition so far as to strike out these words, which I now look upon to be useless.

I have a great respect for the abilities and judgment of my worthy colleague, Mr. Page, and am convinced he is inspired by the purest motives in his opposition to what he conceives to be an improper measure; but I hope he will not think so strange of our difference, if he considers the small proportion of the house which concurs with him with respect to impeachment being the only way of removing officers. I believe the opinion is held but by one gentleman beside himself. If this sentiment was to obtain, it would give rise to more objections to the constitution than gentlemen are aware of; more than any other construction whatsoever: Yet while he professes to be greatly alarmed on one account, he possesses a stoic apathy with respect to the other.

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 , II, 7–9. The motion to strike out the original clause carried. The House passed the bill establishing the Department of Foreign Affairs on 24 June.

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