Loretta Lynch, President Obama’s choice to succeed Eric Holder as Attorney General, has been awaiting senatorial confirmation for almost five months. The second clause of Article II, Section 2, of the Constitution states that presidential appointments of “public Ministers and Consuls” depend on “the Advice and Consent of the Senate,” and Republicans in the Senate are jealously guarding their power by denying consent.
The same clause also states that presidential treaty-making powers are subject to “the Advice and Consent of the Senate.” Forty-seven Senate Republicans place such stock in their constitutional power that they pointed it out to “The Leaders of the Islamic Republic of Iran.” In weeks to come, this corps will be offering President Obama a full dose of advice as it withholds consent for the nuclear deal with Iran.
“Advice and Consent”—what, exactly, did the framers have in mind?
That’s what members of the First Federal Congress tried to figure out, and they stumbled from the start—even though half of the first Senate’s twenty members were framers themselves, along with eight representatives in the first House.
On June 16, 1789, a Tuesday, the House of Representatives considered the framework for a Department of Foreign Affairs, to be headed by a secretary who would be “removable from office by the President of the United States.” This phrase, which followed a list of the secretary’s duties, excited far more interest than the duties themselves, and Alexander White of Virginia moved to strike it out. White and several others reasoned that “if the Senate are associated with the President in the appointment, they ought also to be associated in the dismission from office.” Based on logic alone, Congress had “no right to deprive the Senate of their constitutional prerogative.”
This was also sound policy, they argued. Senators served longer than the president in order to provide stability. (“President Obama will leave office in January 2017, while most of us will remain in office well beyond then—perhaps decades,” the 47 senators informed Iranian leaders.) “A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the Government, as might be expected if he were the sole disposer of offices.”
James Madison disagreed. The Constitution was “silent” on the matter, he noted, but the first sentence of Article II stated, “The executive Power shall be vested in a President.” Each branch was to remain distinct unless otherwise stipulated, and although the Constitution did allow some instances of shared power, whenever these were not explicitly stated, executive functions, including removal of executive officers, must revert to the executive department, headed by the president.
Like his opponents, Madison argued that his approach was not only constitutionally sound but also good policy. If the president required the concurrence of the Senate before removing an executive officer, that officer could ensure his tenure in office by courting the approval of the majority of senators. The secretary of foreign affairs and other such officials would come under the sway of legislators, and executive accountability would be lost. Department heads could endure in office indefinitely, while the president had to stand for reelection every four years. The entire notion of a single chief executive would thus be undermined—in Madison’s dramatic words, “the power of the President” would be reduced “to a mere vapor.”
The dispute continued. With the original document “silent,” each representative had a chance to say his piece, and many did. Speakers on both sides vied with each other for who could best convey the overwhelming sense of gravitas. “The decision that is at this time made, will become the permanent exposition of the constitution; and on a permanent exposition of the constitution will depend the genius and character of the whole Government,” Madison said. “I own to you, Mr. Chairman, that I feel great anxiety upon this question … because I am called upon to give a decision in a case that may affect the fundamental principles of the Government under which we act, and liberty itself.” Not to be outdone, Georgia’s James Jackson declared, “The liberties of my country may be suspended on the decision of this question,” but top honors probably went to Virginia’s Richard Bland Lee. “The day on which this question shall be decided will be a memorable day, not only in the history of our own times, but in the history of mankind,” Lee predicted. “On a proper or improper decision, will be involved the future happiness or misery of the people of America.”
Notwithstanding the hyperbole and seemingly pervasive sense of self-importance, this was in fact an issue of lasting significance. If Congress decided one way, any department head, with skillful navigation, could create a fiefdom that might rival the office of the presidency and last through multiple presidential administrations; if it decided the other way, department heads would be under the direct command of the president, and there would in fact be a single chief executive.
Late on Friday afternoon, after four full days of debates (outlined in 125 pages of the Annals of Congress), the motion to strike “to be removable from office by the President of the United States” failed by a vote of 20 to 34. No other phrase, clause, or sentence commanded such attention or excited such passion during the First Federal Congress; even the Bill of Rights, the lack of which had almost doomed the Constitution, failed to occupy Congress as fully as the great removal debate.
And that debate was not yet over. After passing the House, the president’s power to remove the secretary of foreign affairs (and by implication other department heads) was taken up by the Senate, where it faced tougher resistance. Senators, unlike representatives, had a stake in the matter: they would gain immeasurable influence over the governmental apparatus if they won on a share of removal power. The Senate debate commenced on July 14 and lasted three days, but because the Senate met behind closed doors, the only record of their debates can be found in the colorful journal of Senator William Maclay, from Pennsylvania. By his accounting, Vice President Adams played a major role, not by making speeches but by cajoling wavering senators. “Everybody believed that John Adams was the great converter,” Maclay wrote, and Adams did more than convert. The final vote was ten in favor and ten opposed, so Adams, exercising for the first time his Constitutional authority as presiding officer of the Senate to break a tie, settled the matter in favor of the president’s exclusive removal power. For want of a single vote in the Senate, the federal government’s balance of powers would have been fundamentally altered.
Less than a month after the removal debate, the other “advice and consent” clause faced its first challenge. President Washington wanted to stabilize relations with Indian nations on the southern borderlands so they wouldn’t ally with Spain, which controlled the Mississippi River. Today, we assume that the president first concludes a treaty and then brings it to the Senate for “consent.” At the time, though, Washington and anybody else who took the Constitution at face value reasoned that “by and with the advice … of the Senate” required him to seek senatorial input before or during treaty negotiations, not just afterwards.
So on the morning of August 22, 1789, a Saturday, President Washington and Henry Knox, acting Secretary of War, entered the Senate chamber to seek that body’s advice. Washington composed a letter explaining the recent history of white-Indian relations in the region, followed by an extensive list of specific issues he wished senators to consider—a dozen concerning the Creeks and three that addressed relations with Cherokees, Chickasaws, and Choctaws.
According to William Maclay, Washington handed his introductory remarks to John Adams, who read them aloud. Adams “hurried over the paper” in such a manner that nobody could hear: “Carriages were driving past, and such a noise, I could tell it was something about ‘Indians,’ but was not master of one sentence of it.” Robert Morris asked Adams to read the letter again, and then, immediately, Adams repeated the first item and “put the question: ‘Do you advise and consent, etc.?’ ” When nobody rose to speak, Maclay, who relished the role of gadfly, stepped up. If he had not done so, he worried, “we should have these advises and consents ravished, in a degree, from us.”
“The business is new to the Senate,” Maclay said. “It is of importance. It is our duty to inform ourselves as well as possible on the subject. I therefore call for the reading of the treaties and other documents alluded to in the paper before us.” Although Washington evinced “an aspect of stern displeasure” at this attempt to slow down the process, senators began to address the items point by point. There were so many documents to be read and points to be considered, however, that they decided to send the matter to a committee and take it up at their next session, two days hence. “This defeats every purpose of my coming here,” Washington reportedly said. The president then “cooled by degrees,” but he departed soon thereafter with “a discontented air.”
Washington’s appearance on the Senate floor was a flop by anybody’s standards. Maclay thought it inappropriate for the president “to bear down our deliberations with his personal authority and presence,” while Washington must have been equally displeased. He was no stranger to seeking advice, but not in a venue such as this. On countless occasions during the Revolution, the Commander-in-Chief had convened his war council; never did he take that body’s advice lightly, and often he allowed it to overrule him. Then, he was dealing with colleagues who shared both the information he had at his disposal and a certain level of professional expertise relevant to the items under consideration; now, members of the Senate were ill informed and not particularly conversant in the matters placed before them. Collectively, they saw themselves as a deliberative body; individually, each valued philosophical correctness and speechifying, sometimes at the expense of taking action. Was the upper house of the legislature really the right body to issue advice? And even if it were, what was to be gained by the president sitting through the arduous process?
“Advice and consent” is a handy phrase, but the brief encounter on August 22 revealed that offering advice and granting consent are two very different activities. To give meaningful advice, senators would have to understand the intricacies of councils with Indian and European nations. A handful of delegates to the Federal Convention had wanted to create an executive council to handle such matters, but the idea never gained traction. Instead, senators were assigned the role of advisors, and this proved unworkable the first time it was put to the test.
In truth, the framers had not thought through how “Advice and Consent” might work in treaty-making, much as they had failed to stipulate who had the power to dismiss “public Ministers and Consuls.” This is understandable. Neither of the “Advice and Consent” stipulations was placed on the floor of the Federal Convention until September 4, 1787, after delegates had been deliberating for over three months; by then they were in a rush to adjourn, and they would do so thirteen days later. The Committee of Detail’s draft, submitted on August 6, had stipulated: “The Senate of the United States shall have power to make treaties, and to appoint Ambassadors, and Judges of the Supreme Court.” That draft, too, had stated that the president would be selected by Congress and serve a non-repeatable 7-year term. When a committee consisting of one delegate from each state restructured the entire edifice on September 4, the rest of the framers were so overwhelmed that they discussed the many changes only briefly. On September 7 James Wilson suggested giving the House as well as the Senate a role in ratifying treaties, but only Pennsylvania, his own state, liked the idea. The same day, Wilson and Charles Pinckney of South Carolina argued against involving the legislature in executive matters, but their concern was quickly dismissed. In short order, state delegations approved both the treaty-making and appointment clauses unanimously. That was all the attention “Advice and Consent” received at the Federal Convention.
Through the turbulent 1790s Americans tried to sort this out, dividing along partisan lines much as we do today. In 1793 Alexander Hamilton, writing as Pacificus, argued that the executive department, without the Senate, was the sole “organ of intercourse between the Nation and foreign Nations,” although five years earlier, writing as Publius in The Federalist #75, he had stated that it was “utterly unsafe and improper … to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.” In 1795 opponents of Jay’s Treaty argued unsuccessfully that the treaty was invalid since the Senate had not been asked for its advice; further, they claimed it required the approval of the House as well as the Senate, since only the House was empowered to initiate the appropriation of funds that Jay’s Treaty required. The founding generation seemed as confused about such matters as we are today; then, as now, constitutional arguments were conjured to facilitate desired political outcomes.
All of which leaves us on our own, more so than many would prefer. Perhaps the greatest flaw with the doctrine of Original Intent is that the framers, individually and collectively, were not always clear in their own minds what they intended. They had ideas, they constructed drafts, they debated and changed these, and in the end they settled for the last draft standing, admitting as they granted their assent that flaws would emerge and future citizens would have to work things out, as we must do now.
Ray Raphael’s most recent books are “Mr. President: How and Why the Founders Created a Chief Executive” (Alfred A. Knopf, 2012) and “Constitutional Myths: What We Get Wrong and How to Get It Right” (The New Press, 2013). The tenth anniversary revised edition of “Founding Myths: Stories That Hide Our Patriotic Past” was published by The New Press in 2014.