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Having been vindicated in the election of 1832 for his veto of the congressional bill to recharter the Bank of the United States, President Jackson moved to terminate the institution once and for all when he ordered the removal of its federal deposits the following July. Jackson’s secretary of the Treasury at the time, William Duane, was troubled by the propriety of the president’s order and refused to carry it out. Jackson consequently removed Duane from office and replaced him with a more amenable secretary, Roger Taney. An attempt by the House to impeach Jackson would have been fruitless given that there was not a two-thirds majority in the Senate willing to vote in favor of impeachment. Under pressure from Jackson’s political opposition, the Senate did offer a novel proposal as a compromise measure—a resolution issued March 28, 1834, formally censuring Jackson after he refused to hand over documents regarding deliberations in the White House over the Second Bank of the United States. The resolution censured Jackson for his removal of the deposits and his dismissal of the secretary of the Treasury.
Jackson responded with a formal protest of the censure, arguing that it violated the separation-of-powers doctrine by assuming the legislature possessed the authority to judge the conduct of an independent, coequal branch of government outside of the prescribed mode of impeachment. Besides challenging the censure resolution, Jackson also defended his own conduct against Congress’ charge that he had abused his executive powers in the case of both the removal of the deposits and the dismissal of the Treasury secretary. Jackson’s argument in the protest offers a seminal treatment of the relationship of the executive and legislative branches under the separation-of-powers scheme.
James D. Richardson, ed., A Compilation of the Messages and Papers of the Presidents,
1789–1897, vol. 3 (Washington, D.C.: Government Printing Office, 1897), 1290–1291, 1298–
1299, 1301–1303, 1304, 1305, 1309–1310, https://hdl.handle.net/2027/mdp.39015002140146.
Under the Constitution of the United States the powers and functions of the various departments of the federal government and their responsibilities for violation or neglect of duty are clearly defined or result by necessary inference. The legislative power is subject to the qualified negative of the president,1 vested in the Congress of the United States, composed of the Senate and House of Representatives; the executive power is vested exclusively in the president, except that in the conclusion of treaties and in certain appointments to office he is to act with the advice and consent of the Senate; the judicial power is vested exclusively in the Supreme and other courts of the United States, except in cases of impeachment, for which purpose the accusatory power is vested in the House of Representatives and that of hearing and determining in the Senate. But although for the special purposes which have been mentioned there is an occasional intermixture of the powers of the different departments, yet with these exceptions each of the three great departments is independent of the others in its sphere of action, and when it deviates from that sphere is not responsible to the others further than it is expressly made so in the Constitution. In every other respect each of them is the coequal of the other two, and all are the servants of the American people, without power or right to control or censure each other in the service of their common superior, save only in the manner and to the degree which that superior has prescribed. . . .
Tested by these principles, the resolution of the Senate is wholly unauthorized by the Constitution, and in derogation of its entire spirit. It assumes that a single branch of the legislative department may for the purposes of a public censure, and without any view to legislation or impeachment, take up, consider, and decide upon the official acts of the executive. But in no part of the Constitution is the president subjected to any such responsibility, and in no part of that instrument is any such power conferred on either branch of the legislature. . . .
By the Constitution “the executive power is vested in a president of the United States.”2 Among the duties imposed upon him, and which he is sworn to perform, is that of “taking care that the laws be faithfully executed.” Being thus made responsible for the entire action of the executive department, it was but reasonable that the power of appointing, overseeing, and controlling those who execute the laws—a power in its nature executive—should remain in his hands. It is therefore not only his right, but the Constitution makes it his duty, to “nominate and, by and with the advice and consent of the Senate, appoint” all “officers of the United States whose appointments are not in the Constitution otherwise provided for,” with a proviso that the appointment of inferior officers may be vested in the president alone, in the courts of justice, or in the heads of departments.
The executive power vested in the Senate is neither that of “nominating” nor “appointing.” It is merely a check upon the executive power of appointment. If individuals are proposed for appointment by the president by them deemed incompetent or unworthy, they may withhold their consent and the appointment cannot be made. They check the action of the executive, but cannot in relation to those very subjects act themselves nor direct him. Selections are still made by the president, and the negative given to the Senate, without diminishing his responsibility, furnishes an additional guaranty to the country that the subordinate executive as well as the judicial offices shall be filled with worthy and competent men.
The whole executive power being vested in the president, who is responsible for its exercise, it is a necessary consequence that he should have a right to employ agents of his own choice to aid him in the performance of his duties, and to discharge them when he is no longer willing to be responsible for their acts. In strict accordance with this principle, the power of removal, which, like that of appointment is an original executive power, is left unchecked by the Constitution in relation to all executive officers, for whose conduct the president is responsible, while it is taken from him in relation to judicial officers, for whose acts he is not responsible. In the government from which many of the fundamental principles of our system are derived the head of the executive department originally had power to appoint and remove at will all officers, executive and judicial. It was to take the judges out of this general power of removal, and thus make them independent of the executive, that the tenure of their offices was changed to good behavior. Nor is it conceivable why they are placed in our Constitution upon a tenure different from that of all other officers appointed by the executive unless it be for the same purpose. . . .
The custody of the public property, under such regulations as may be prescribed by legislative authority, has always been considered an appropriate function of the executive department in this and all other governments.3 In accordance with this principle, every species of property belonging to the United States (excepting that which is in the use of the several coordinate departments of the government as means to aid them in performing their appropriate functions) is in charge of officers appointed by the president, whether it be lands, or buildings, or merchandise, or provisions, or clothing, or arms and munitions of war. The superintendents and keepers of the whole are appointed by the president, responsible to him, and removable at his will.
Public money is but a species of public property. It cannot be raised by taxation or customs, nor brought into the Treasury in any other way except by law; but whenever or howsoever obtained, its custody always has been and always must be, unless the Constitution be changed, entrusted to the executive department. No officer can be created by Congress for the purpose of taking charge of it whose appointment would not by the Constitution at once devolve on the president and who would not be responsible to him for the faithful performance of his duties. The legislative power may undoubtedly bind him and the president by any laws they may think proper to enact; they may prescribe in what place particular portions of the public property shall be kept and for what reason it shall be removed, as they may direct that supplies for the Army or Navy shall be kept in particular stores, and it will be the duty of the president to see that the law is faithfully executed; yet will the custody remain in the executive department of the government. . . .Congress cannot, therefore, take out of the hands of the executive department the custody of the public property or money without an assumption of executive power and a subversion of the first principles of the Constitution. . . .
It would be an extraordinary result if because the person charged by law with a public duty is one of his secretaries it were less the duty of the president to see that law faithfully executed than other laws enjoining duties upon subordinate officers or private citizens. If there be any difference, it would seem that the obligation is the stronger in relation to the former, because the neglect is in his presence and the remedy at hand.
It cannot be doubted that it was the legal duty of the secretary of the Treasury to order and direct the deposits of the public money to be made elsewhere than in the Bank of the United States wherever sufficient reasons existed for making the change. If in such a case he neglected or refused to act, he would neglect or refuse to execute the law. What would be the sworn duty of the president? Could he say that the Constitution did not bind him to see the law faithfully executed because it was one of his secretaries and not himself upon whom the service was specially imposed? Might he not be asked whether there was any such limitation to his obligations prescribed in the Constitution? Whether he is not equally bound to take care that the laws be faithfully executed, whether they impose duties on the highest officer of state or the lowest subordinate in any of the departments? Might he not be told that it was for the sole purpose of causing all executive officers, from the highest to the lowest, faithfully to perform the services required of them by law that the people of the United States have made him their chief magistrate and the Constitution has clothed him with the entire executive power of this government? The principles implied in these questions appear too plain to need elucidation. . . .
Thus was it settled by the Constitution, the laws, and the whole practice of the government that the entire executive power is vested in the president of the United States; that as incident to that power the right of appointing and removing those officers who are to aid him in the execution of the laws, with such restrictions only as the Constitution prescribes, is vested in the president; that the secretary of the Treasury is one of those officers; that the custody of the public property and money is an executive function which, in relation to the money, has always been exercised through the secretary of the Treasury and his subordinates; that in the performance of these duties he is subject to the supervision and control of the president, and in all important measures having relation to them consults the chief magistrate and obtains his approval and sanction; that the law establishing the bank did not, as it could not, change the relation between the president and the secretary—did not release the former from his obligation to see the law faithfully executed nor the latter from the president’s supervision and control; that afterward and before the secretary did in fact consult and obtain the sanction of the president to transfers and removals of the public deposits, and that all departments of the government, and the nation itself, approved or acquiesced in these acts and principles as in strict conformity with our Constitution and laws. . . .
The resolution of the Senate as originally framed and as passed, if it refers to these acts, presupposes a right in that body to interfere with this exercise of executive power. . . . But if the Senate have a right to interfere with the executive powers, they have also the right to make that interference effective, and if the assertion of the power implied in the resolution be silently acquiesced in, we may reasonably apprehend that it will be followed at some future day by an attempt at actual enforcement. The Senate may refuse, except on the condition that he will surrender his opinions to theirs and obey their will, to perform their own constitutional functions, to pass the necessary laws, to sanction appropriations proposed by the House of Representatives, and to confirm proper nominations made by the president. It has already been maintained (and it is not conceivable that the resolution of the Senate can be based on any other principle) that the secretary of the Treasury is the officer of Congress and independent of the president; that the president has no right to control him, and consequently none to remove him. . . . Followed to its consequences, this principle will be found effectually to destroy one coordinate department of the government, to concentrate in the hands of the Senate the whole executive power, and to leave the president as powerless as he would be useless—the shadow of authority after the substance had departed. . . .
But the evil tendency of the particular doctrine adverted to [the Senate’s right to interfere with the exercise of executive power], though sufficiently serious, would be as nothing in comparison with the pernicious consequences which would inevitably flow from the approbation and allowance by the people and the practice by the Senate of the unconstitutional power of arraigning and censuring the official conduct of the executive in the manner recently pursued. Such proceedings are eminently calculated to unsettle the foundations of the government, to disturb the harmonious action of its different departments, and to break down the checks and balances by which the wisdom of its framers sought to insure its stability and usefulness.
The honest differences of opinion which occasionally exist between the Senate and the president in regard to matters in which both are obliged to participate are sufficiently embarrassing; but if the course recently adopted by the Senate shall hereafter be frequently pursued, it is not only obvious that the harmony of the relations between the president and the Senate will be destroyed, but that other and graver effects will ultimately ensue. If the censures of the Senate be submitted to by the president, the confidence of the people in his ability and virtue and the character and usefulness of his administration will soon be at an end, and the real power of the government will fall into the hands of a body holding their offices for long terms, not elected by the people and not to them directly responsible. If, on the other hand, the illegal censures of the Senate should be resisted by the president, collisions and angry controversies might ensue, discreditable in their progress and in the end compelling the people to adopt the conclusion either that their chief magistrate was unworthy of their respect or that the Senate was chargeable with calumny and injustice. Either of these results would impair public confidence in the perfection of the system and lead to serious alterations of its framework or to the practical abandonment of some of its provisions.4…
- 1. The president’s authority to veto legislation (Article I, section 7).
- 2. Here Jackson responded to the first charge of the censure, that the removal of Treasury secretary William Duane was an abuse of executive power.
- 3. Here Jackson responded to the second charge of the censure, that he abused his authority in removing the deposits of the Bank because the deposits were under the custody of Congress. The statute had authorized the secretary of the Treasury to remove deposits in the case of a financial emergency. The Senate argued that there was no such emergency at the time of the removal and that the decision to remove the deposits belonged exclusively to the secretary of the Treasury, not the president.
- 4. The censure was formally expunged from the records of the Senate on January 16, 1837.