THE TENURE-OF-OFFICE BILL
THE warm days of June, 1789, when New York City was still the capital of the United States, witnessed a debate raging on the floor of the first Congress. The giants of the great Constitutional Convention were many of them taking part, but no one spoke oftener or more to the point than James Madison.
The point at issue was whether the Secretary of the new Department of Foreign Affairs could be made removable by the President without the advice and consent of the Senate.1 Would such a law conflict with the Constitution? Since he wrote much of it, Madison must have known the instrument by heart. Probably he did not have to turn to its pages, but those who did, read this: "The President . . . shall nominate, and by and with the advice and consent of the Senate shall appoint Ambassadors . . . and all other officers of the United States whose appointments are not herein otherwise provided for and which shall be established by law. . . ."2 But in whom the power of removal rested, whether in the President alone or in the President "by and with the advice and consent of the Senate," the Constitution maintained a sphinx-like silence.
But if the Constitution was silent on this point, those who wrote the instrument were not. Madison contended with impelling logic that the Constitution gave the President the right, without the advice and consent of the Senate, to remove officers whom he had appointed,3 and that the power of removal was incident to the power of appointment.4 But perhaps his strongest argument was based upon the constitutional provision requiring the President "to take care that the laws be faithfully executed."5
Madison prevailed. He and his associates then sought to make it plain that they were not creating a power, but were merely making a "legislative construction" of the Constitution, by recog