The American Democrat/On the Powers of the Executive
ON THE POWERS OF THE EXECUTIVE.
The president "sees the laws faithfully executed." In order to render this power efficient, he appoints to office and removes all officers, but the judges, and those whom they are authorized by congress to appoint, who form an independent portion of the government. As this has been a disputed authority, it may be well to explain it more distinctly.
The president nominates to the senate, and with its "advice and consent," appoints all the officers of the government, with the exception of those whose appointment congress has authority to vest, by law, in the heads of departments, or in the courts of justice. The functionaries appointed by the courts of law are not removable, either directly, or indirectly, by the president, that branch of the government being independent, and not executing, but merely interpreting the laws. Although the president cannot remove the officers who are appointed by the heads of departments, he can remove those heads of departments themselves, thereby securing a prompt and proper execution of their duties. In this manner all the executive agents are subject to the supervisory power of the president, as, there can be no just doubt, was the intention of the constitution.
The right of the president to remove from office has been disputed, but on insufficient grounds. Unless the constitution shall be so interpreted as to give him this power, all officers must hold their places until removed by death, or impeachment, as it is clear no other branch of the state, separately, or in connection with a second, possesses this authority. A brief examination of the instrument will demonstrate this truth, the reader bearing in mind that there is now question, only, of those officers who are appointed by the executive, and not of those who are appointed by the courts of law, or the heads of departments.
The language of the constitution is as follows:—"He (the president) shall have power, by and with the advice and consent of the senate, to make treaties, provided two thirds of the senators concur; and he shall nominate, and, by and with the advice and consent of the senate, appoint ambassadors," &c. &c. and all the other officers of the government, with the exceptions already named. From this phraseology it has been contended that, as the senate has a voice in appointing, it ought to have a voice in removing from office, the constitution leaving the latter authority entirely to construction.
In addition to the paragraph just quoted, we find that "he (the president) shall commission all officers of the United States." All the direct provisions of the constitution on this subject, are contained in these two parts of sections.
The pretension in behalf of the senate's voice in removals, is made under an erroneous notion of its power in appointments. The senate in no manner appoints to office. This is proved by the language of the constitution, which reads, by taking away the parenthetical part of the sentence, "he (the president) shall appoint," &c. &c. In no other way, can grammar be made of the sentence. The president, therefore, and not the senate appoints to office, and by construction, the president decides on the removal. The consent of the senate, in the cases of treaties and offices, is a bestowal of authority on the president, alone, by which consent he receives a complete power to act in the premises, as he shall judge expedient. Thus a treaty is not ratified, because the senate approves of it, nor a citizen appointed to office because the senate consents to his appointment; the authority granted in both cases being given to the president, and not to the instrument in the case of a treaty, or to the individual in the case of an appointment. The president may refuse to ratify a treaty, which is the consummation of such a compact, or to commission an officer, which is his authority to act, after having received the consent of the senate, in both cases. The power of the senate is merely a negative power in appointments and in treaties, its dissent defeating the intention of the president, but its assent in no manner obliging him to adhere to his first resolution. Or, it would be better still to say, the senate has power to complete the authority of the president.
In some countries a parent negatives the marriage of the child. This is a similar case in principle, for when the father consents, he does not marry, but permits his child to perform the affirmative act.
The powers of the president are three-fold, in the cases of appointments. He "nominates," he "appoints" and he "commissions." To nominate is to propose, or name; to appoint, is to determine in the mind, or, in this case to settle on consultation; and to commission, is to empower. The last act, is the one by which the nominee receives his authority, and it would seem to be a just construction that the authority which appoints and empowers should have the right to withdraw its commission.
They who object to this reasoning, say that the power to "commission" is merely a ministerial power. No part of the constitution can be thus limited in its signification. All the powers of the executive named in the instrument, are strictly executive powers, and are to be construed solely on the great principles that regulate all executive authority. This is in conformity with the letter and spirit of the constitution, which has instituted this high office, not as a ministerial, but as an executive office.
The distinction between an executive and a ministerial function is great and manifest. The last is positive, and limited by the provisions of the law to be executed; the first has a wide discretion, and is always to be interpreted on as liberal and broad principles, as the nature of the case will allow; it being the intention that high political considerations should have their due weight on the acts of such an agent. But a quotation from the constitution, itself, will show our meaning. The section which contains the power of the president to commission, is in these words: "He (the president,) shall, from time to time, give to congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both houses, or either of them, and, in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he may think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed; and he shall commission (empower, in an executive sense) all the officers of the United States.
Each and all of these high functions are executive, and are to be discharged on the great principles of executive power. Thus the president is not obliged to "receive ambassadors and other public ministers," as they shall present themselves, like a mere minister of state, when the act is contrary to the interests and character of the nation; but he is the depository of that discretionary authority, to receive, or to reject them, which by the usages of nations and in the necessity of things, must somewhere abide in all governments. Under the confederation this power resided in congress; under the constitution it is in the president. Were this function merely a ministerial function, the president would have no power to decline receiving a foreign agent, and the country would be destitute of a necessary means to protect the interests and dignity of the state.
On the same principle, the right to commission (or empower) as an executive right, in the absence of any specific fundamental law to the contrary, infers the right to withdraw that commission; or in other words, to remove from office.
All the different powers of the president confirm this construction. He is commanded "to take care that the laws be faithfully executed," a duty than can be discharged in no other manner, than by displacing unworthy agents, and entrusting the authority to worthier; he nominates, or originates the appointment; with the consent of the senate, he settles the matter in his own mind, or appoints; and according to the true and technical signification of the word, he commissions, or empowers; unless it be intended that all offices shall be held during good behaviour, he removes.
That the constitution did not intend that officers should be irremovable, is to be inferred from the fact that duties are assigned the president, that can be discharged in no other manner than by displacing delinquents; from the general usages of governments; and from the fact that certain officers are named, in the way of exceptions, as those who are to hold their trusts during good behaviour.
An example will show the necessity of this power's existing in the president. A collector is commanded to perform certain acts, which he neglects to do, to the great injury of the country. The executive is ordered by the constitution to take care that this, as well as the other laws, be faithfully executed. He admonishes the delinquent, who pertinaciously adheres to his illegal course. In what manner is the president to enforce the law? Impeachment is not in his power, in the first place; and in the next place, it does not enforce the law, but punishes the offender. He may, in some cases, order the law officers of the government to prosecute for penalties, perhaps, but the law officers may also refuse to do their duties, and thus the whole intention of the institutions would be set at naught.
Errors have arisen, on these subjects, by misconceiving the meaning of the terms. "Nominate," "appoint" and "commission," are to be construed in their broadest significations, in an instrument as dignified and comprehensive as a constitution, and with strict reference to the general character of the functions with which they are connected, functions that are purely executive and in no manner ministerial. This is the only statesmanlike view of the question, though the practice of permitting common-law lawyers to expound the great national compact, has had the effect to narrow and degrade the instrument, favoring the views of political factions, and not unfrequently disturbing the country without a commensurate object.
The practice of the government has always been in conformity with this reasoning, though, it is believed that no commentator has ever given a sufficiently broad signification to the power to commission. If this power be strictly executive, as it is just to deem it, it must be taken like the power to receive ambassadors, or as a duty vested with high executive discretion. The president has consequently the same authority to withold, or to withdraw a commission, in the one case, as in the other, to receive or to decline receiving a foreign minister.
It follows that all the affirmative power in making treaties, in appointing to office, and in removing, is in the president alone, the advice and consent of the senate not authorising the several acts, but merely completing the right of the executive to perform these high functions himself.
The president of the United States, besides his civil duties, is the military commander in chief of the army and navy of the United States, at all times, and of the militia of the several states whenever the latter is called into the field.
He is the representative of the constituencies of the states, under a peculiar modification, and for the purposes set forth in the constitution. He has no prerogative, which implies an inalienable and exclusive right or privilege, for his functions take the character of duties, and the states can legally, and under prescribed forms, not only modify those duties, but they can altogether destroy the office, at will.
As a rule, there is far more danger that the president of the United States will render the office less efficient than was intended, than that he will exercise an authority dangerous to the liberties of the country. Some of his powers perhaps, are too imitative, and are unnecessary; that of dismissing military officers, for instance. But it is a greater evil to attempt reducing them, except in conformity with the provisions of the constitution, than to endure them. Even these questionable points of power, have been seldom abused, and, as a whole, the history of the country shows ten instances of presidents' evading responsibility, to one of their abusing power. A recent case is that of the executive's assenting to an indirect law recognizing the independence of Texas, a measure that is purely diplomatick and international, and which, of course, ought to be regulated by treaty, and in no other manner. A step of this gravity, if referred to the proper authority, would have required the sanction of a two thirds vote in the senate, and consequently a deliberation and prudence that might do better justice, and possibly avoid a war.