America's Unwritten Constitution: The Precedents and Principles We Live By (96 page)

         
After 1791 Washington routinely involved the attorney general in the cabinet despite the fact that the AG was not a formal department head; however, the president did not usually bring the postmaster general into collective cabinet deliberations, even though the postmaster general was legally a department head, vested by Congress (as only department heads could be vested) with the power to appoint inferior departmental officers. See Act of Feb. 20, 1792, 1 Stat. 232, 234. Washington’s choices remind us that, strictly speaking, his “cabinet” was an informal entity, not an official assembly of all executive department heads. Note also that, for reasons that will become clear in Chapter 10, Vice President Adams did not play a large role either in cabinet deliberations or as a close presidential confidant. See Henry Barrett Learned,
The President’s Cabinet: Studies in the Origin, Formation, and Structure of an American Institution
(1912), 118–130.

26
  Examples include Massachusetts, Rhode Island, Connecticut, New York, and New Jersey. See, generally, Main,
Upper House
.

27
  
Maclay’s Journal
, 129–130 (Aug. 22, 1789).

28
  Ibid., 131 (emphasis in original); Charles Francis Adams, ed.,
Memoirs of John Quincy Adams
(1875), 6:427 (diary entry of Nov. 10, 1824). Adams was transcribing a tale told to him by William H. Crawford, whose source was probably James Monroe. Monroe had joined the Senate a year after Washington’s famous visit. See Stanley Elkins and Eric McKitrick,
The Age of Federalism
(1993), 765 n. 44.

29
  See Main,
Upper House
, 3; Joseph Ralston Hayden,
The Senate and Treaties
, 1789–1817 (1920), 62–92.

30
  “The Anas,” in Jefferson,
Writings
, 191 (Apr. 9, 1792), 218–220 (Feb. 26, 1793); Hayden,
The Senate and Treaties
, 88–93.

31
  True, Congress might seek to enact legislation removing an executive-branch official—for example, by eliminating his cabinet office altogether, or defunding his office, or simply excising him in an even more surgical fashion. But if the president supports the beleaguered official, the president can simply veto any attempted removal legislation, and it has generally proved quite difficult for Congress to override a president’s veto. See Saikrisha Prakash, “Removal and Tenure in Office,”
Virginia LR
92 (2006): 1779.

32
  Shortly after the assassination of President Kennedy in 1963, the written Constitution was formally amended to empower the cabinet in one very specific context to vote as a collectivity—and with that vote to override the president, and, indeed, to oust him from power, if a majority of the group, prompted by the vice president, deems the president unable to discharge his office. See U.S. Const., amend. XXV, sec. 4. This extraordinary power, vested in “a majority of…the principal officers of the executive departments,” is carefully hedged by a series of safeguards designed to prevent palace coups. Nevertheless, the very existence of this power serves as a sharp contrast to the pointed absence of any official collective cabinet decisionmaking in the Founders’ Constitution. This clause also illuminates the risks to presidential power latent in an overly strong model of collective cabinet governance.

33
  Over the centuries, presidents have varied considerably in the use of their cabinets. Andrew Jackson, the first president to treat the postmaster general as a regular cabinet member, also famously relied on various informal advisers who functioned as his “kitchen cabinet.” Abraham Lincoln organized his cabinet so as to bring within his administration a talented group of ambitious politicians and presidential aspirants. Franklin Roosevelt was known for playing cabinet officials off one another as a means of testing loyalty and extracting better performances. Dwight Eisenhower publicly presented himself as a strong believer in cabinet government. In the perilous hours of the Cuban Missile Crisis, John F. Kennedy relied not on his full cabinet but rather on an “Executive Committee”—an ad-hoc collection of National Security Council members and other key foreign policy and intelligence advisers. Today, the cabinet typically includes more than twenty members—Washington’s original four, plus the heads of newer departments and agencies, including the Department of Homeland Security and the Environmental Protection Agency. Also notable is the larger role of the vice president in modern American cabinets, which has been reflected in various twentieth-century framework statutes and in a pair of twentieth-century constitutional amendments. These amendments are discussed in more detail in Chapter 10.

_____________________

^†
Available online on the Library of Congress website, “A Century of Lawmaking.” Many of these LOC databases are word-searchable. Detailed citations are generally omitted for other easily web-searchable materials, such as the
Federalist
essays, Jefferson’s
Manual of Parliamentary Practice
, the collected works of Abraham Lincoln, famous speeches in American history, national political party platforms, and prominent Supreme Court opinions.

1
  It might be thought that the jury system is also a “permanent” institution of federal governance, even though individual juries are typically quite transient. On the proper size, structure, and scope of juries, see Chapter 11.

2
    Some uncertainty surrounds the required end-date of incarceration when a house holds
multiple “sessions” within the two-year term allotted to each successive Congress. Also, there are questions about how the temporal limits applicable to House incarceration apply to the Senate. It might be thought that because the Senate operates as a continuing body that does not lapse and revive biennially in the same manner as does the House, senatorial incarceration power need not lapse every two years. But structurally, why should the Senate enjoy greater contempt-punishing power than the House? Since House contempt power necessarily lapses biennially, so should Senate contempt power. More importantly, a large threat to liberty would arise if the Senate could reach back into the distant past, to identify prior acts of contempt against its younger self, and could furthermore project punishment for any contempt, whether recent or ancient, infinitely into the future. Any future assertion of such a nearly boundless power would find little support in actual senatorial practice. For more on the Senate, see Aaron-Andrew P. Bruhl, “Burying the ‘Continuing Body’Theory of the Senate,”
Iowa LR
95 (2010): 1401.

3
    Va. Const. (1776), para. 27 (beginning, “The right of suffrage…)”; Josh Chafetz,. “Executive Branch Contempt of Congress,”
U. of Chicago LR
76 (2009): 1083, 1125–1126.

4
    Josh Chafetz,
Democracy’s Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions
(2007), 208 (“[T]he Houses’ power to punish non-Members does not seem to have been considered in…the states’ ratifying conventions, or the press”). In the secret Philadelphia Convention, George Mason did on August 7 raise the issue of a general power of investigation and inquest, opining that members of Congress “are not only Legislators but they possess inquisitorial powers. They must meet frequently to inspect the Conduct of the public offices.”
Farrand’s Records
, 2:206.

5
    Though former officers are also arguably subject to impeachment, Morris had not served as an officer under the U.S. Constitution, but rather as a secretary under the Articles of Confederation. On the limited circle of impeachable persons, see infra n. 17.

6
    
Annals
, 2:1514–1515 (March 19, 1790).

7
    See David P. Currie,
The Constitution in Congress: The Federalist Period
, 1789–1801 (1997), 163–164; Act of May 3, 1798, 1 Stat. 554.

8
    See, generally, Chafetz,
Democracy’s Privileged Few
, 212–214, 226–235. On Randall, see Chafetz, “Executive Branch Contempt,” 1128. In the case law, see
Marshall v. Gordon
, 243 U.S. 521
(1917); Jurney v. MacCracken
, 294 U.S. 195 (1935); cf.
Groppi v. Leslie
, 404 U.S. 496, 501 (1972). On the Office of Legal Counsel’s position, see 8 U.S. Op. Off. Legal Counsel 101, 124 (May 30, 1984). For contrary views, see Jefferson’s
Manual of Parliamentary Practice
, sec. 3; St. George Tucker,
View of the Constitution of the United States, with Selected Writings
(1803, Liberty Fund 1999), 146–150.

9
    For another example of early practice glossing an ambiguous text in Congress’s favor and to the disadvantage of the president, see Amar,
ACAB
, 594–595 n. 7 (discussing how early practice and case law glossed an ambiguous Article V by establishing that proposed constitutional amendments need not be presented to the president).

         
On the implicit constitutional power that the judiciary claims that it has to punish in-court contempts, see
Young v. United States ex rel. Vuitton et Fils S.A
., 481 U.S. 787, 804
(1987). Recall two related points from Chapter 1. First, federal judges have long claimed implied immunity from state libel laws for any judicial utterance in an opinion or in the courtroom, much as members of Congress have always enjoyed express immunity under the Article I speech-or-debate clause. Second, executive officials such as the president and vice president deserve similarly absolute immunity for certain expressions in their official capacity.

         
If courts and the houses of Congress have “inherent” power to punish past acts of contempt, may a president pardon a judicial or congressional detainee who is being punished for a past act of contempt? Textual and structural considerations seem to point in both directions. If presidents may pardon in these contexts, then the House and Senate are not as independent over their own proceedings as they might think, and the president has the effective power to countermand prosecutors who, unlike ordinary federal prosecutors, do not derive their prosecutorial powers from presidential appointment. If presidents may not pardon, then there exists an unwritten exception to the Article II pardon power above and beyond the one exception explicitly mentioned in the Constitution’s text for cases of impeachment, and the additional exception, implicit in the
nemo judex
principle, that a president may never pardon himself. Relying in part on a long line of actual practice, the Court in 1925, per Chief Justice (and former president) Taft, held that the president may indeed pardon for criminal contempt of court, something that previous presidents had done twenty-seven times over an eighty-five-year period.
Ex Parte Grossman
, 267 U.S. 87, 118 (1925). A different result might obtain regarding attempted pardons for contempts of houses of Congress. See ibid. (noting 1830 opinion of Attorney General Berrien).

10
  See
Marshall v. Gordon
, 243 U.S. 521 (1917). One final fact about actual practice during the free-expression controversy of the late 1790s merits mention: At the precise moment that the explicit free-speech guarantee of America’s written Constitution—the First Amendment—was being punctured by the Sedition Act, an implicit free-speech guarantee of America’s unwritten Constitution emerged to minimize the damage. While many printers and speakers in 1798 and 1799 were deterred from criticizing the federal Sedition Act, lest they be prosecuted under that very statute, the Virginia and Kentucky legislatures felt free to criticize the act with impunity. That criticism, of course, occurred via the now-famous Virginia and Kentucky Resolves. Nothing in the written Constitution explicitly guaranteed state legislatures the same virtually absolute freedom of speech and debate expressly guaranteed members of Congress under Article I, section 6. Yet this symmetric freedom for state lawmakers apparently went without saying. In the 1760s and early 1770s, colonial legislatures across the continent had claimed their rights, as American parliaments, to absolute parliamentary freedom to criticize the king, and indeed, to criticize Parliament itself. These colonial legislatures had not merely claimed this absolute freedom of speech and debate; they had wielded this freedom in actual practice, and with great effect. A generation later, this established usage helped ground the assumption that American state legislatures could exercise sweeping freedom of
speech and debate against the new central government. Some printers in the late 1790s apparently felt themselves free to republish with impunity these state legislative resolves, even as these same printers thought twice about publishing comparable tracts that could not claim the absolute expressive immunity enjoyed by state legislative resolves. In this remarkable episode, America’s unwritten Constitution outperformed its written counterpart. At a dark hour when, despite the seemingly clear words of the First Amendment, the sword seemed mightier than the pen, the practice of free speech in legislative assemblies proved mightiest of all. And it did so even though no specific clause in the written Constitution expressly buttressed the practice-based argument that state legislatures existed as special free-speech enclaves wholly immune from federal censorship laws.

11
  Note also that Marbury’s lawyer, Charles Lee, had conceded that “confidential communications between the head of the department and the President” were privileged.

12
  Washington acted on March 1, 1796. See Chapter 8, n. 9. See also Act of March 6, 1796, 1 Stat. 459. For details of the stare-down, see Currie,
The Constitution in Congress
, 211–215. Note that Washington explicitly emphasized that the House request for information was not made as part of any impeachment inquiry.
Annals
, 5:760 (reprinting Washington letter to House of March 30, 1796).