by John Yoo
When Congress took up the issue of national finance on May 19, 1789, Madison proposed three departments: War, Foreign Affairs, and Treasury. Each department would have a Secretary, appointed by the President with the advice and consent of the Senate, but removable by the President alone.10 Amendments to require Senate approval of removals failed, and Madison's proposal won a considerable majority.11 Specific bills detailing each department's functions came before Congress a month later, whereupon opponents of executive power again attempted to strike recognition of the President's removal authority.
Madison argued that the President's standing as Chief Executive gave him the inherent power to fire subordinates. "Is the power of displacing an executive power?" Madison asked the House on June 16. "I conceive that if any power whatsoever is in its nature executive it is the power of appointing, overseeing, and controlling those who execute the laws."12 The Constitution only allowed a single exception to the President's power in the Senate's advice and consent function. Congress could not add others. "If the constitution has invested all executive power in the President," Madison said, "I venture to assert that the Legislature has no right to diminish or modify his executive authority."
While there were dissenters, the First Congress clearly believed that Article II's vesting of the executive power in the President was more than a stylistic device. Madison's supporters amended the bills to make clear that Congress was not granting the President the power to remove, but only recognizing his constitutional authority to do so.13 In the Senate, which we would expect to be more jealous of its prerogatives, the removal provision encountered more difficulties. The Senate deadlocked 10-10 on the bills to create the Departments of Foreign Affairs and War because of the removal question. Vice President Adams broke both ties in favor of the House versions, handing the administration a victory. The Treasury bill raised a different variation of the executive power issue. Critics thought the power of the Department was too great, particularly its authority to "digest and prepare plans for the improvement and management of the revenue, and the support of the public credit," which they believed properly rested within Congress's power of the purse. They sought to divide leadership of the Treasury into a board, as under the Articles of Confederation, and to limit the President's removal power because the Department exercised legislative powers. Again, Madison succeeded in convincing the House to create a Treasury Department with maximum authority and energy, but within the President's control, and again the Vice President broke a Senate tie in the administration's favor.14
Members of the legislative and executive branch would recognize that the "Decision of 1789" represented Congress's own constitutional understanding of the President's executive authority to remove subordinate officials. In the course of the debate, supporters of presidential removal argued that the Chief Executive bore the constitutional obligation to faithfully execute the laws. This required that subordinates aid him "in the administration of his department."15 The President's power to remove gave him the power to make sure that these officials enforce the laws as he wished. Giving Congress or the Senate a role in removal would make the President a "mere vapor" and would place "the Legislature at the head of the Executive branch."16 As Madison wrote to Jefferson, the House vote was "most consonant to the text of the Constitution, to the policy of mixing the Legislative and Executive Departments as little as possible, and to the requisite responsibility and harmony in the Executive Department."17
Washington's cabinet nominations met far less opposition than the creation of their offices. Hamilton was nominated, confirmed, and took office as Secretary of the Treasury all on September 11, 1789. Henry Knox was confirmed as Secretary of War the next day, and Thomas Jefferson was nominated for Secretary of State two weeks later and was confirmed in a day. In choosing these officials, Washington did not pursue the same objectives as Presidents today.
Washington did not become President as the head of a political party and did not campaign for a "mandate," nor did he seek nominees who agreed with a particular program or agenda. Washington chose men he called the "first Characters," who had already held positions of trust in state government, the Confederation, or the Continental Army. They were to be both strong on merit and geographically diverse. Washington believed that selecting nominees who were held in the highest regard in their communities would encourage respect and "affection" for the new national government.18 He balanced the major cabinet appointments among Virginia, New York, and Massachusetts; his Supreme Court nominees hailed from six different states. His interest in "first Characters" at times outweighed his interest in harmonious relations: Hamilton and Jefferson quickly became deeply divided over economic and foreign policy, such that Washington did not even have his cabinet meet as a group until his second term under the pressures of the French Revolution.19 Nominees had to be "friends" of the national government; no Anti-Federalists would assume federal office. While making his first appointments, Washington wrote that he would not "bring a man into office ... whose political tenets are adverse to the measures which the general government are pursuing." This, he believed, would be "a sort of political Suicide."20
Given his interest in local reputations, Washington might have welcomed the Senate's participation before selection of a nominee. Article II's advice-and-consent structure might have given rise to a joint Senate role in choosing the nominees -- otherwise, what would distinguish "advice" from "consent"?21 But Washington would have none of it. Even before he had chosen his cabinet officers, Washington had assumed the responsibility of nominating customs collectors, who would represent the national government in every major city and port. For Savannah, Washington chose a former revolutionary army officer named Benjamin Fishbourne, who was serving in the same capacity for the state of Georgia. Fishbourne became the first nominee to be rejected by the Senate.
The Senate adopted a resolution seeking face-to-face meetings with the President for every open office and appointed a committee to meet with Washington to work out the procedures. Washington promptly nominated another candidate and rebuffed the idea of formally meeting with the Senate to choose executive officers. He wanted to make clear that he was the Chief Executive and that members of the executive branch were his assistants. While Presidents, including Washington, have always informally consulted with members of Congress in selecting federal officers and judges, they have ever since relegated the Senate's constitutional function to the approval of their nominees.
Once installed, cabinet members understood that Washington was responsible for the actions of the entire executive branch. Writing to his own administration 12 years later, Jefferson described Washington as sending a stream of questions, requests, and orders to his department secretaries and meeting with each of them on a regular basis, usually over breakfast, to discuss matters until he was fully satisfied. This unending circulation of reports, letters, and paperwork -- backed up by the President's constitutional authority to require "opinions in writing" -- kept him "always in accurate possession of all facts or proceedings in every part of the Union, and to whatsoever department they related."22 Washington "formed a central point for the different branches," Jefferson wrote, allowing the President to promote "unity of object and action among them." Given his wartime experiences, as Forrest McDonald has observed, Washington felt little need to delegate foreign or military affairs, sometimes reducing Jefferson and Knox to the status of glorified clerks.23 Hamilton exercised unusual leadership over the establishment of the national bank not because of any constitutional or statutory independence, but because Washington remained uninterested in finance. Washington also trusted Hamilton because of his wartime service as his trusted aide-de-camp and upon the recommendation of Robert Morris, who had overseen revolutionary finances. Hamilton's grand design was unique in another respect. It was the only time that the administration managed legislation through Congress. In general, Washington took a hands-off approach to the legislature. In his first annual address to Congress (del
ivered in person), he put aside his original plan to propose legislation and instead spoke generally about commerce, farming, and manufacturing; promoting science and the arts; and implementing the Constitution.24 He questioned whether he could do anything more. "It rests with [Congress] to decide what measures ought afterwards to be adopted for promoting the success of the great objects, which I have recommended to their attention."25 Today's practice of lobbying Congress or threatening a veto to affect policy outcomes would have been quite foreign to our first President.
Creating the nation's financial system was the exception. Hamilton proposed that the national government assume the wartime debts owed by the Confederation and the states. To repay at close to face value, Hamilton wanted to issue bonds funded by new taxes on imports. His plan essentially refinanced the national debt by consolidating multiple loans into one large, regular mortgage payment. It created a permanent debt, which Hamilton believed would provide a stable currency (with the government notes), expand credit within the economy, and give the financial and merchant classes (who would hold the notes) a stake in the government's success. It also needed a national bank to loan the government money and handle its interest payments, and to make open market transactions in government bonds.26 Assumption of the state debt made it through the First Congress, but only after Hamilton, Jefferson, and Madison had reached a deal over dinner. Jefferson supported the financial legislation when Hamilton agreed that the national capital would rest on the Potomac.27
Hamilton worked tirelessly to build public and congressional support for his grand design. While the core of Congress's constitutional powers lay in the purse strings, the complexity of public finance and spending caused legislators to vote up or down passively on Hamilton's initiatives. Still, Hamilton's plan caused Washington to consider the first use of the veto. Madison and Jefferson worried that the proposed system would duplicate Britain's corrupt political and social system. Influenced by British oppositionist ideology, they associated a national bank with the Crown's influence over Parliament, the movement of economic power away from farms to the cities, and the rise in the political power of the financial classes. Even as Hamilton's proposal passed both houses overwhelmingly, Madison attacked it for lacking any specific textual basis in the Constitution and exceeding the Necessary and Proper Clause. Madison reversed his anonymous position in The Federalist, where he had argued in favor of a broad reading of the federal government's powers.28
Washington asked Jefferson and Attorney General Edmund Randolph for their opinions, and even asked Madison to draft a veto message. Randolph concluded that the Tenth Amendment limited the powers of Congress to set up a bank. Jefferson argued that the creation of a bank was not "necessary" to achieve a legitimate purpose, and that to give the Necessary and Proper Clause a broader construction would burst the Constitution's careful limits on national power.29 Hamilton responded that the Clause was a grant of power that allowed the government to enact means that were not just "necessary," but useful. The Necessary and Proper Clause empowered the government, rather than limiting it to steps that were absolutely indispensable.30 Hamilton's opinion would strongly influence the Supreme Court's opinion in McCulloch v. Maryland, which upheld the constitutionality of the bank 20 years later.31 Washington signed the bill two days after he received Hamilton's written opinion.
Washington understood the President to have the independent right to decide on a bill's constitutionality. If he had deferred to Congress, he would not have asked his cabinet, and he did not think of waiting on the courts to decide. Washington appears to have believed that he should only veto legislation he thought clearly violated the Constitution. Jefferson himself had advised Washington to use the veto only if his mind was "tolerably clear" on the bill's unconstitutionality.32
Washington did not issue a veto until 1792 for a bill that allocated Representatives to different states in a clear violation of the Constitution's requirement that every state receive no more than one member for every 30,000 citizens.33 While Washington left behind no written thoughts about the veto, it seems that his reasoning was similar to the logic of Federalist 78 and Marbury v. Madison. As the delegation of authority from the people to their political agents, the Constitution represents the highest law. No branch of the government can engage in any act that breaches its terms. A President has a constitutional duty to use his powers, including the veto, to prevent violations of the Constitution. As Jefferson wrote in his bank opinion, the veto was "the shield provided by the Constitution" to prevent Congress from exceeding its enumerated powers.34
Washington did not seek to transform his veto into a broader right to advance his policy views. Glenn Phelps argues that Washington signed legislation on international trade and senatorial pay that ran strongly against his own policy preferences.35 Still, Washington did not believe his legislative function was limited to guarding the Constitution. His only other veto blocked spending legislation with no constitutional infirmity. In the last days of his Presidency, Congress passed a bill eliminating two cavalry units on the Western frontier. This clearly rested within Congress's constitutional authority to raise and fund the military, but Washington nonetheless rejected the bill because it immediately stopped the pay of troops far away on the frontier, where they were most needed.36 Washington thought Congress's plan made for poor military strategy, something he knew more about than anyone in the United States.
ENFORCING THE LAW
WASHINGTON DID NOT believe that his executive power was limited to the hiring and firing of officials. Procedural in nature, that view places the President in charge of all of the personnel within the departments and agencies, but does not recognize any powers of substance. An important constitutional dimension of the Presidency, however, flows through Article II's requirement that the President "shall take Care that the Laws be faithfully executed." While Presidents have believed that the Take Care Clause includes the interpretation and enforcement of federal law, critics have argued that it only acts to prohibit the President from suspending a law duly enacted by Congress.37 Under this theory, Article II's vesting of the executive power mandates only a single President, and not much else. More sophisticated scholars, such as Lawrence Lessig and Cass Sunstein, maintain that Congress's power to establish the agencies includes the right to decide who is to enforce federal law, even so far as to vest the execution of law in entities independent of the President.38
This was not Washington's view. He believed that the executive power held both substantive and procedural dimensions. The President's primary authorities of substance centered in foreign and military affairs, but a significant part was domestic. Washington believed that a combination of his authority as Chief Executive and the Take Care Clause gave him the power and responsibility to carry out federal law. This included directing anyone, regardless of his position, who might participate in enforcing the law. Washington, in his vigorousness, even set precedents followed by no other President after him such as personally leading troops in a show of force against a rebellion.
Scholars have long observed that the Constitution leaves unclear where "administration" falls among the executive, legislative, and judicial branches. For Washington, that function lodged with the Presidency, just as Hamilton had argued in The Federalist. Our first President believed it crucial to set a visible precedent of vigorous and effective execution of the laws to contrast the strength of the new national government with the weaknesses of the old. Washington's choices were all the more important because of the First Congress's great mass of legislative activity. Unlike its predecessor, the First Congress immediately exercised many of its enumerated powers. It established the executive departments, the federal courts, tax and customs rules, a system for the sale of the Western lands, intellectual property rights, bankruptcy regulations, and navigation rules. Some functions were performed by "mongrel" offices (Randolph's description of the Attorney General because it lacked a department) that fit uneasily in a clean tripartite separation of
powers. The Post Office seems to have operated with significant independence; federal prosecutors were appointed by the courts and reported to the Secretary of State; and the Secretaries of War and State and the Attorney General reviewed patent applications.39 But the great mass of federal law was to be carried out by the new departments, with Treasury having the greatest number of employees (500 versus 22 in the other departments) to collect taxes and customs duties. Washington took control of these officials from the very start.
As with Shays' Rebellion, Americans' suspicion of taxes put the young government to the test. One of the subroutines of Hamilton's financial program imposed an excise tax on the manufacture of liquor. Whiskey was an important article of commerce, going beyond the impressive drinking ability of Founding-era Americans. Distilling allowed Western farmers to transform their crops into a more transportable form, to the point where whiskey even served as a form of frontier currency. After Congress adopted the tax in 1791, protests occurred in the western parts of Pennsylvania (one of the leaders was Albert Gallatin, who would become Jefferson's Treasury Secretary), Virginia, Kentucky, and the Carolinas. Armed resistance broke out three years later, the first significant internal challenge to the new federal government. It would not be the last time that Americans would break the law to defend their beverage of choice.40
Washington employed a strategy of political patience backed up by the threat of force. When trouble first arose, he issued a proclamation declaring that resistance to the tax was "subversive of good order, contrary to the duty that every citizen owes to his country, and to the laws, and of a nature dangerous to the very being of a government."41 Citing his authority under the Take Care Clause, Washington ordered all courts and officials to enforce the tax and to punish lawbreakers. He sent a note to state governors expressing his "entire confidence" that they would "cheerfully" promote "a due obedience to the Constitutional Laws of the Union." Governors were not even officers of the federal government, but Washington believed that he could command them to enforce the law.