stitution.12 The proposal did not survive the subsequent winnowing process, presumably because the principle seemed too obvious to need reiteration. In any case, if long-established tradition forbade so much as the suspension of laws without full legislative permission, then a fortiori it forbade the repeal of laws by executive authority alone.

There is another point to consider, however. In the United States a duly enacted law can be voided by a body completely different from the one that enacted it. The Supreme Court can do so. The theory here is that the court is faced with a conflict of laws (namely, a conflict between the statute and the higher law of the Consttiution), and that it is enforcing the latter instead of the former not because the court itself is superior in authority to the legislature, but because the constitutional provision emanates from an authority which is superior to the legislature, namely the people of the United States, who have spoken through the conventions that ratified the original document or subsequently amended it."

13

Nothing whatever in the situations examined thus far suggests that the framers of the American Constitution intended to give the President power to undo by his own unaided authority something that had been done (and had been required to be done) only in concurrence with at least some part of the legisla. ture. Only when an authority of higher or broader scope entered the picture could any enactment (of the types thus far discussed) be voided without the consent of all the authorities that had concurred in its making.

Unless clear evidence to the contrary can be offered, it is reasonable to suppose that the framers intended the same principle to apply to the abrogation of a treaty as to the repeal of a statute, both being parts of the supreme law of the land by constitutional definition. The principal argument to the effect that an exception was intended in the case of treaties is based upon an analogy drawn from a widely different constitutional area. The validity of this analogy must next be examined.

Removal from office.-The election or appointment of an individual to office bears little resemblance to either the ratification of a treaty or the enactment of a law. Each process, however, is capable of being reversed: officials can be dismissed, treaties abrogated, and statutes repealed. Though the Constitution says nothing about the procedure for repealing a statute or abrogating a treaty, it does say something about procedures (in the plural) for removal from office. These procedures, it must be pointed out, differ markedly according to the nature of the office held.

Members of the federal judiciary are nominated by the President and appointed by and with the advice and consent of the Senate (a simple majority being sufficient). The judges are, however, guaranteed tenure during good behavior, which means that they cannot be removed by those who jointly appointed them. The only method provided by the Constitution is impeachment, commencing with charges brought by the House of Representatives and concluding with trial by the Senate, the latter's members being "on oath or affirmation" and a two-thirds majority being required for conviction." The President, though crucially involved in the appointing process, is completely excluded from the impeachment proceedings.

So far as elected officials are concerned, the framers of the federal Constitution never contemplated giving the electorate a power of recall, such as several states have provided in twentieth-century amendments to their constitutions. The power to remove is thereby separated, in this instance as in the other, from the power to appoint. Instead, the Constitution grants each of the houses of Congress the power to judge and punish its own members and, by two-thirds vote, to expel them. The electorate (who chose the member in the first place) has only the power to deny him another term.

Only two members of the executive branch are elected, the President and the Vice-President, and neither is removable by the electors who chose him or by the wider electorate who chose the electors. As with judges, the only procedure for removal is impeachment.

12 Texts in Edward Dumbauld, "The Bill of Rights" (Norman, Okla., 1957), pp. 167. 171. 183. 199. The English Bill of Rights also declared illegal the royal claim to a power of "dispensing" with laws, but American draftsmen obviously felt that "suspending" covered everything.

13 Classic statements are those of Alexander Hamilton in "The Federalist". No. 78 (1788) [see the ed. of Clinton Rossiter (N.Y. 1961), pp. 464-472, esp. 466-469]; and Chief Justice John Marshall in Marbury v. Madison, 1 Cranch [5 U.S.] 137 (1803), at 176-180.

14 U.S. Constitution, art. 1, secs. 2 and 3; art. 3, sec. 1.

15 Ibid., art. 1, sec. 5, cl. 2.

With respect to the dismisal or removal of appointed officers of the federal government, the Constitution is completely silent, except that impeachment is possible for any of them, and except that military officers can be made dischargeable by court martial if Congress exercises its power "[t]o make Rules for the Government and Regulation of the land and naval Forces." 18

9917

Aside from military officers, four different types of appointed officials are mentioned in the appointing clause of the Constitution, namely (i) “Ambassadors, other public Ministers and Consuls"; (ii) "Judges of the Supreme Court"; (iii) "other Officers of the United States"; and (iv) "inferior officers," whose appointments Congress is permitted to vest "in the President alone, in the Courts of Law, or in the Heads of Departments." Except for the last group, all are to be appointed in accordance with the same procedure, nomination by the President and approval by a majority of the Senate. Obviously, however, it is impossible to suppose that the procedure for dismissal was intended to be the same in all cases. Judges were to be removed only by impeachment; if this were required in the case of all officials, then the latter would in effect enjoy life tenure. This was pointed out in the great debate on the removal power that took place in 1789 in the First Congress. James Madison was most emphatic in repudiating the idea that the Constitution was designed to "establish every officer of the Government on the firm tenure of good behavior." He continued: "If the constitution means this..., we must submit; but I should lament it as a fatal error interwoven in the system, and one that would ultimately prove its destruction." 18

The lumping together of appointed officials of such disparate kinds as judges and subordinate executive officers was the result of a compromise reached in the closing days of the federal Convention of 1787. On the 6th of August, ten weeks and a half after the beginning of deliberations and only six weeks before adjournment, a so-called Committee of Detail reported the first formal draft of a full-fledged constitution, bringing together and elaborating ideas that had previously taken the form only of resolutions. In this draft two classes of appointed officials-namely, ambassadors and judges were singled out, and their appointment vested in the Senate, with no participation by the President. On the other hand, the President alone, with no reference to either House of Congress, was empowered to “appoint officers in all cases not otherwise provided for by this Constitution." 1 The logical conclusion from this document is that the President was expected to control his subordinates by wielding the power to dismiss those whom he alone had appointed, but that he would not have any such power over judges (who could only be removed by impeachment) or over ambassadors, who were to be diplomatic representatives of the Senate, a body which possessed (at this stage of the Convention's proceedings) the exclusive power to make treaties.

The arrangement proposed by the Committee of Detail was not accepted as it stood by the Convention. After discussion the provisions in question were sent back to committee, and on the 4th of September a compromise was reported. It was adopted on the 7th, ten days before the Convention ended. The new provision still distinguished from one another (in words at least) the three previously-mentioned classes of officers: ambassadors, judges, and "all other Officers." But it provided the same appointing procedure for all, thereby giving the Senate a veto over officials appointed in the executive branch, and admitting the President to a share in the process of appointing ambassadors and judges by requiring nominations to come from him.20

The First Congress, as has already been noted, was obliged to deal with the question of removal, the Constitution having failed to provide an explicit answer save in the case of judges. The question came up in connection with a bill establishing a Department of Foreign Affairs, later renamed the Department of State. The principal debate was in the House of Representatives, where, on the 19th of May 1789, James Madison introduced a resolution proposing the establishment of a Department of Foreign Affairs, headed by a Secretary, "who shall be appointed by the President, by and with the advice and consent of the Senate; and

16 Ibid., art. 1. sec. 8. cl. 14 and 16.

17 Ibid.. art. 2, sec. 2, cl. 2.

18 Annals of Congress, 1st Cong.. 1st sess.. col. 387 (19 May 1789).

19 Report of the Committee of Detail, 6 Aug. 1787, art. 9, sec. 1, and art. 10, sec. 2; in Max Farrand. ed.. "Records of the Federal Convention of 1787" (4 vols., New Haven, 1911-37), II. 183. 185.

20 Report of the Committee of Eleven (Brearley, ch.), 4 Sept. 1787, in Farrand, II, 495; Journal, 7 Sept., ibid., 533-534.

43-968 O - 79-3

to be removable by the President." "1 Objection was immediately made to the concluding phrase, and the argument against removal by the president alone was succinctly stated by Madison's fellow Virginian, Theodorick Bland:

He thought it consistent with the nature of things, that the power which appointed should remove; and would not object to a declaration in the resolution **that the President shall remove from office, by and with the advice and consent of the Senate. He agreed that the removal by impeachment was a supplementary aid favorable to the people; but he was clearly of opinion, that the same power that appointed had, or ought to have, the power of removal. Madison defended his resolution as follows:

I think it absolutely necessary that the President should have the power of removing from office; it will make him, in a peculiar manner responsible for their conduct, and subject him to impeachment himself, if he suffers them to perpetrate with impunity high crimes or misdemeanors against the United States, or neglects to superintend their conduct, so as to check their excesses. At the end of the day the House voted "by a considerable majority, in favor of declaring the power of removal to be in the President." "

25

This did not end the matter, for the vote was in Committee of the Whole and by its own terms simply expressed "the opinion of this committee." The bill that was drafted in consequence was subjected to five full days of debate between the 16th and the 22nd of June 1789. Speeches on both sides reiterated the arguments outlined in May, and need not be traced in detail here. In the end a compromise was reached by striking from the bill the explicit provision making | the Secretary "removable by the President," but inserting a provision recognizing such a power by indirection." According to the measure finally adopted (by a vote of 29 to 22), the chief clerk (described as an “inferior officer") was to take charge of the department "whenever the *** principle officer shall be removed from office by the President of the United States, or in any other case of va cancy. ." The compromise meant that those who considered removal by the president alone to be unconstitutional were left free to contest any dismissal that might occur.

On the whole, therefore, the act of the 27th of July 1789 creating the Department of Foreign Affairs embodied Madison's interpretation of the Constitution as set forth on the 19th of May. In the meantime, however, on the 29th of June, Madison himself had proposed limiting the scope and applicability of the principle he had originally stated. The occasion was a bill to establish a Treasury Depart-1 ment, one of whose officers would be a Comptroller. The latter's duties, Madison argued, "are not purely of an executive nature." The officer would have the responsibility of "deciding upon the lawfulness and justice of the claims and accounts subsisting between the United States and particular citizens." This, continued Madison, "partakes strongly of the judicial character, and there may be strong reasons why an officer of this kind should not hold his office at the pleasure of the executive branch of the Government." 28 In the face of objections that he was "setting afloat the question which had already been carried," Madison withdrew his proposal." Though the presidential power of removal continued to be challenged over the years, it was only in 1935 in the Humphrey case that the Supreme Court upheld the challenge in any substantial way. The dismissed official, William E. Humphrey, had been a member of a quasi-legislative, quasi

30

21 Annals of Congress, 1st Cong., 1st sess., col. 385 (19 May 1789).

22 Ibid., col. 389.

23 Ibid., col. 387.

24 Ibid., col. 399. The debate was in committee of the whole, and no roll-call was recorded.

25 Ibid., cols. 474-608 (16-19 and 22 June 1789).

26 House of Representatives, Journal, vol. i (reprinted Washington, 1826), pp. 50-52 (22 June 1822). The House first voted, 30 to 18, to add the ambivalent phrase "whenever the said principal officer shall be removed from office by the President, .. or in any

other case of vacancy"; then voted. 31 to 19, to strike out the positive phrase "to be removable from office by the President." The meaning that both sides put upon the new language is made clear in the debate. "Annals of Congress", 1st Cong., 1st sess.. cols. 598-599. (19 June), 600-608 (22 June).

27 Act of 27 July 1789, chap. 4. sec. 2; 1 Statutes at Large 28, at 29. The bill passed the House on 24 June; the Senate on 20 July. "Annals of Congress", 1st Cong., 1st sess.

co's. 51. 614.

28 "Annals of Congress", 1st Cong., 1st sess., cols. 635-636 (29 June 1789).

29 Ibid., cols. 638-639.

30 For example in the Post Office Act of 12 July 1836, chap. 179. sec. 6; 12 Statutes at Large 78, at 80. which provided that postmasters in the top three classes "shall be appointed and may be removed by the President by and with the advice and consent of the Senate." The Supreme Court held the provision unconstitutional in Myers v. U.S., 272 U.S. 52 (1926).

judicial regulatory commission (the Federal Trade Commission), and the Court held that the commissioners were intended by Congress "to act in discharge of their duties independently of executive control," and were accordingly given fixed terms and made removable only "for cause.'

11 31

Madison's interpretation of the Constitution can thus be said to have been sustained. The president can remove on his own authority an officer in the executive branch who has been appointed with the consent of the Senate, but this power (according to the Supreme Court in the Humphrey case) is "confined to purely executive ocers.' In other cases (so Madison had said apropos of the Comptroller), it is necessary "to consider the nature of [the] office." To phrase the idea more comprehensively, it is necesary to consider the nature of the governmental activity involved.

11 32

This last consideration has an important bearing on the validity of the analogy that is sometimes drawn between the president's power to remove officials appointed by and with the advice and consent of a majority of the Senate, and an alleged power of his to abrogate treaties made by and with the advice and consent of two-thirds of the Senate. It is well to revert to the precise reason given by Madison for inferring from the Constitution a strictly limited presidential power of removal. On the 17th of June 1789, in the course of the House debate, he spoke as follows:

I agree that if nothing more was said in the constitution than that the President, by and with the advice and consent of the Senate, should appoint to office, there would be great force in saying that the power of removal resulted by a natural implication from the power of appointing . . . But there is another part of the constitution which inclines, in my judgment, to favor the construction I put upon it; the President is required to take care that the laws be faithfully executed. If the duty to see the laws faithfully executed be required at the hands of the Executive Magistrate, it would seem that it was generally intended he should have that species of power which is necessary to accomplish that end. Now, if the officer when once appointed is not to depend upon the President for his official existence, but upon a distinct body, (for where there are two negatives required, either can prevent the removal), I confess I do not see how the President can take care that the laws be faithfully executed."

There is a close analogy between the power to abrogate a treaty and the power to repeal a statute. It is difficult to imagine a genuine analogy between either of these powers and the power to dismiss an incompetent or corrupt official. The president's ability to take care that the laws be faithfully executed may well be said to depend on his possession of the later power. But a power to change the law (whether established by statute or treaty) is something utterly different-a contradiction rather than a corollary of the responsibility for seeing to its faithful execution.

Indeed, if the analogy is to be appealed to at all, it is more convincing when applied the other way round, as an argument against a presidential removal power. It was so used by Roger Sherman of Connecticut in the debate in the First Congress :

I consider it an established principle, that the power which appoints can also remove, unless there are express exceptions made. Now the power which appoints the judges cannot displace them, because there is a constitutional restriction in their favor. . . . It is a general principle in law, as well as reason, that there shall be the same authority to remove as to establish. It is so in legislation, where the several branches whose concurrence is necessary to pass a law, must concur in repealing it. Just so, I take it, to be in cases of appointment; and the President alone may remove when he alone appoints, as in the case of inferior offices to be established by law.35

31 Humphrey's Executor v. U.S., 295 U.S. 602, at 629 (1935).

32 Ibid.. at 632.

33 "Annals of Congress". 1st Cong.. 1st sess.. col. 635 (29 June 1789).

34 Ibid.. col. 516 (17 June 1789). Theodore Sedgwick (Massachusetts) put the argument succinctly in the subsequent debate on the Treasury Department: "He conceived that a majority of the House had decided that all officers concerned in executive business should depend upon the will of the President for their continuance in office; and with good reason, for they were the eyes and arms of the principal Magistrate, the instruments of execution." Ibid.. col. 637 (29 June 1789).

35 Ibid., cols. 510-511 (17 June 1789). In a speech the next day Sherman challenged the other side to "produce an authority from law or history which proves, that where two branches are interested in the appointment. one of them has the power of removal." And he asked scornfully whether anyone believed that in matters of legislation, where "the concurrence of both branches is necessary to pass a law, a less authority can repeal it." Ibid., col. 559 (18 June).

Roger Sherman's argument did not prevail; the power to dismiss a purely executive officer was carefully distinguished from the power to repeal a law. This merely underlines the fact that the presidential removal power which the First Congress implicitly sanctioned was an exception to what was otherwise accepted as a general rule. To argue that it established a general rule of opposite character is to subvert logic itself. In interpreting the so-called "decision of 1789," one must also remember that the President's carefully circumscribed removal power does not derive directly from an explicit clause of the Constitution. It is simply an inference from that document, and an inference that a substantial and articulate minority in the First Congress considered unsound.

Furthermore, the procedures for making treaties and for making appointments were by no means put on the same level by the clause that happened to deal with both. In the first place, two-thirds of the Senate must give advice and consent to a treaty, whereas a simple majority is sufficient to approve an appointment. In the second place, the president is given the exclusive power to make nominations to office, whereas in treaty-making the Constitution does not set him apart in this special way from those who advise and share responsibility with him. On both these counts, accordingly, the President's constitutional role, as compared with that of the Senate, is proportionately far less where treaties are in question than where appointments are involved.

PREPARED STATEMENT OF PROF. CHARLES E. RICE

This statement will examine the limited issue of whether the President, acting by himself and without the consent of the Senate or Congress, has the constitutional right to give the notice of termination provided by a treaty, where that treaty has not already been breached by the other party or rendered impossible to perform or superseded by a later treaty or law. There are no judicial holdings deciding this point. Recourse therefore must be had to the intent of the framers of the Constitution, the historical practice and the effect on the constitutional separation of powers of the recognition of such a Presidential power. First, we should distinguish the power to terminate a treaty from the acknowledged Presidential power to communicate that decision to foreign nations. There is no doubt that as "the sole organ of the nation in its external relations, and its sole representative with foreign nations" [U.S. v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936) (quoting Chief Justice John Marshall)], the President communicates the termination decision to foreign nations, but the existence of this limited power in the President does not of itself determine the more basic issue as to which branch or branches of government shall make that decision. As James Madison observed, "it must be evident that, although the executive may be a convenient organ of preliminary communications with foreign governments, on the subjects of treaty or war, and the proper agent for carrying into execution the final determinations of the competent authority, yet it can have no pretensions from the nature of the powers in the question compared with the nature of the executive trust, to that essential agency which gives validity to such determinations." [1 Letters and Other Writings of James Madison (1884), 615-16]

Under the Articles of Confederation, the Congress of the United States had "the sole and exclusive power of . . . entering into treaties and alliances, provided that no treaty of commerce shall be made whereby the legislative power of the respective states shall be restrained from imposing such imposts and duties on foreigners as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities, whatsoever." [Article IX] The Articles further provided that the Congress “shall never. . . enter into any treaties or alliances . . . unless nine states assent to the same." [Article IX] This restrictive notion of the treaty power was carried over into the Constitutional Convention of 1787, where the framers feared that the treaty power could be used to damage regional and state interests. As a continued safeguard, they replaced the old requirement of assent by nine states with the provision that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." [Art. I, Sec. 2, col. 2] The Constitution makes no distinction among different types of treaties. All treaties, of commerce, navigation, alliance or whatever, are brought into being by the same mechanism. But the Constitution is silent on the mode of terminating treaties.