Speech on the Appointing and Removing Power

Image: Henry Clay in the U.S. Senate. Staunton, Phineas. (1866) U.S. Senate Collection. https://www.senate.gov/art-artifacts/fine-art/paintings/32_00050_000.htm
Why did Clay believe that Jackson’s dismissal of the secretary of the Treasury (and other officers) constituted an abuse of power? What branch has the power to determine the conditions for removal? What should be the proper procedure for dismissing an executive official?
Among the members of the First Congress (See Debate in Congress over the Removal Power), who would have supported Clay’s position on the removal power and why? What are the major differences between Clay’s understanding of the role of the executive in the administration of law and that of Andrew Jackson in his protest on the Senate censure?

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In February 1835, a Senate select committee proposed to amend the Tenure of Office Act of 1820 (the Four Years’ Law), which imposed a four-year term limit on executive officeholders and gave incoming presidents the right to remove them. Andrew Jackson used this statute to introduce his system of “rotation in office” to reward his supporters. The Whig opposition strongly opposed the president’s use of this removal power, particularly after Jackson’s controversial removal of Secretary of the Treasury William Duane after for his refusal to remove federal deposits from the Bank of the United States on Jackson’s orders. The Whigs dubbed Jackson’s rotation in office “the spoils system,” a reference to the corrupt practice of the British monarchy in which the king used political favors in order to purchase support in Parliament. The amendment to the Tenure of Office Act proposed among other things to require the president to provide an explanation to the Senate for the removal of an executive branch officer: “That in all nominations made by the president to the Senate, to fill vacancies occasioned by an exercise of the president’s power to remove from office, the fact of the removal shall be stated to the Senate at the same time that the nomination is made, with a statement of the reasons for which such officer may have been removed.”

The Senate debate took place in the shadow of the Bank War and Jackson’s removal of the deposits from the Bank of the United States (See Veto Message Regarding the Bank of the United States and Speech on the Presidential Veto of the Bank Bill). Not only had Jackson managed to vindicate his veto of the recharter bill for the Bank, he had also successfully defended his removal of the deposits when the Senate expunged its censure of him in 1834. Clay’s efforts to tame Jackson’s presidency had already suffered numerous setbacks. The 1835 amendment represented his final attempt to curtail the growth of executive power under Jackson. In his speech before the Senate, Clay not only defended the proposed amendment but argued that the remedy for Jackson’s abuse of executive power required an even stronger amendment whereby the Senate ought to be empowered to block such removals.

—J. David Alvis and Joseph Postell

The Works of Henry Clay, Comprising His Life, Correspondence and Speeches, ed. Calvin Colton (New York: G. P. Putnam’s Sons, 1904), vol. 8, 13–15, 17–18, 25, https://archive.org/details/worksofhenry02clay/page/10/mode/2up.

. . . We can now deliberately contemplate the vast expansion of executive power, under the present administration, free from embarrassment. And is there any real lover of civil liberty who can behold it without great and just alarm? Take the doctrines of the protest,1 and the secretary’s report together, and, instead of having a balanced government with three coordinate departments, we have but one power in the state. According to those papers, all the officers concerned in the administration of the laws are bound to obey the president. His will controls every branch of the administration. No matter that the law may have assigned to other officers of the government specifically defined duties; no matter that the theory of the Constitution and the law supposes them bound to the discharge of those duties according to their own judgment, and under their own responsibility, and liable to impeachment for malfeasance; the will of the president, even in opposition to their own deliberate sense of their obligations, is to prevail, and expulsion from office is the penalty of disobedience! It has not, indeed, in terms been claimed, but it is a legitimate consequence from the doctrines asserted that all decisions of the judicial tribunals, not conformable with the president’s opinion, must be inoperative, since the officers charged with their execution are no more exempt from the pretended obligation to obey his orders than any other officers of the administration.

The basis of this overshadowing superstructure of executive power is the power of dismission,2 which it is one of the objects of the bill under consideration somewhat to regulate, but which it is contended by the supporters of executive authority is uncontrollable. The practical exercise of this power, during this administration, has reduced the salutary cooperation of the Senate, as approved by the Constitution, in all appointments, to an idle form.3 Of what avail is it, that the Senate shall have passed upon a nomination if the president, at any time thereafter, even the next day, whether the Senate be in session or in vacation, without any known cause, may dismiss the incumbent? Let us examine the nature of this power. It is exercised in the recesses of the executive mansion, perhaps upon secret information. The accused officer is not present nor heard, nor confronted with the witnesses against him, and the president is judge, juror, and executioner. No reasons are assigned for the dismission, and the public is left to conjecture the cause. Is not a power so exercised essentially a despotic power? It is adverse to the genius of all free governments, the foundation of which is responsibility. Responsibility is the vital principle of civil liberty, as irresponsibility is the vital principle of despotism. Free government can no more exist without this principle than animal life can be sustained without the presence of the atmosphere. But is not the president absolutely irresponsible in the exercise of this power? How can he be reached? By impeachment? It is a mockery. . . .

The power of removal, as now exercised, is nowhere in the Constitution expressly recognized. The only mode of displacing a public officer, for which it does provide, is by impeachment. But it has been argued, on this occasion, that it is a sovereign power, an inherent power, and an executive power; and, therefore, that it belongs to the president. Neither the premises nor the conclusion can be sustained. If they could be, the people of the United States have all along totally misconceived the nature of their government, and the character of the office of their supreme magistrate. Sovereign power is supreme power; and in no instance whatever is there any supreme power vested in the president. Whatever sovereign power is, if there be any, conveyed by the Constitution of the United States, is vested in Congress, or in the president and Senate. The power to declare war, to lay taxes, to coin money, is vested in Congress; and the treaty-making power in the president and Senate. The postmaster general has the power to dismiss his deputies. Is that a sovereign power, or has he any?

Inherent power? That is a new principle to enlarge the powers of the general government. Hitherto it has been supposed that there are no powers possessed by the government of the United States, or any branch of it, but such as are granted by the Constitution; and, in order to ascertain what has been granted, that it was necessary to show the grant, or to establish that the power claimed was necessary and proper to execute some granted power. In other words, that there are no powers but those which are expressed or incidental. But it seems that a great mistake has existed. The partisans of the executive have discovered a third and more fruitful source of power. Inherent power! Whence is it derived? The Constitution created the office of president and made it just what it is. It had no powers prior to its existence. It can have none but those which are conferred upon it by the instrument which created it, or laws passed in pursuance of that instrument. Do gentlemen mean, by inherent power, such power as is exercised by the monarchs or chief magistrates of other countries? If that be their meaning, they should avow it. . . .

The power of removal from office not being one of those powers which are expressly granted and enumerated in the Constitution, and having I hope successfully shown that it is not essentially of an executive nature, the question arises, to what department of the government does it belong, in regard to all offices created by law, or whose tenure is not defined in the Constitution? There is much force in the argument which attaches the power of dismission to the president and Senate conjointly, as the appointing power. But I think we must look for it to a broader and higher source: the legislative department. The duty of appointment may be performed under a law which enacts the mode of dismission. This is the case in the post office department, the postmaster general being invested with both the power of appointment and of dismission. But they are not necessarily allied, and the law might separate them, and assign to one functionary the right to appoint, and to a different one the right to dismiss. Examples of such a separation may be found in the state governments.

It is the legislative authority which creates the office, defines its duties, and may prescribe its duration. I speak, of course, of offices not created by the Constitution, but the law. The office coming into existence by the will of Congress, the same will may provide how, and in what manner the office and the officer shall both cease to exist. It may direct the conditions on which he shall hold the office, and when and how he shall be dismissed. Suppose the Constitution had omitted to prescribe the tenure of the judicial office, could not Congress do it? But the Constitution has not fixed the tenure of any subordinate offices, and therefore Congress may supply the omission. It would be unreasonable to contend that, although Congress, in pursuit of the public good, brings the office and officer into being and assigns their purposes, yet the president has a control over the officer which Congress cannot reach or regulate; and this control, in virtue of some vague and undefined implied executive power, which the friends of executive supremacy are totally unable to attach to any specific clause in the Constitution?

It has been contended, with great ability, that, under the clause of the Constitution which declares that Congress shall have power “to make all laws, which shall be necessary and proper for carrying into execution the foregoing powers, and all others vested by this Constitution in the government of the United States, or in any department or officer thereof,” Congress is the sole depository of implied powers, and that no other department or officer of the government possesses any. If this argument be correct, there is an end of the controversy. But if the power of dismission be incident to the legislative authority, Congress has the clear right to regulate it. And if it belong to any other department of the government under the cited clause, Congress has the power to legislate upon the subject, and may regulate it, although it could not divest the department altogether of the right. . . .

It is contended that the president cannot see that the laws are faithfully executed unless he possesses the power of removal. The injunction of the Constitution imports a mere general superintendence, except where he is specially charged with the execution of a law. It is not necessary that he should have the power of dismission. It will be a sufficient security against the abuses of subordinate officers that the eye of the president is upon them, and that he can communicate their delinquency. The state executives do not possess this power of dismission. In several, if not all, the states, the governor cannot even dismiss the secretary of state; yet we have heard no complaints of the inefficiency of state executives, or of the administration of the laws of the states. The president has no power to dismiss the judiciary; and it might be asked, with equal plausibility, how he could see that the laws are executed if the judges will not conform to his opinion, and he cannot dismiss them?

But it is not necessary to argue the general question, in considering either the original bill or the amendment. The former does not touch the power of dismission, and the latter only makes it conditional instead of being absolute. . . .

  1. 1. Jackson, Message of Protest to the Senate, April 15, 1834. Jackson argued that the secretary of the Treasury is a subordinate of the president and cannot be insulated from the removal power of the chief executive.
  2. 2. The power to remove a subordinate executive branch official.
  3. 3. Meaning that the Senate’s power to check the executive when it advises and consents to the appointment of superior officers is diminished by the president’s power to indiscriminately remove such officers.
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