Presidential precedents of George Washington

- [Sal] Hi this is Sal and I'm here with Jeffrey Rosen who's the head of the National Constitution Center in Philadelphia. In the first video we did an overview of the entire Article Two of the Constitution which covers the powers of the presidency, and now we're gonna jump in a little bit deeper. Jeffrey one of the things that surprises me about Article Two is for a job as important as the President, it's an awfully short amount of text. - [Jeffrey] It is. Article One, defining the powers of Congress is much longer. The Framers were much more concerned about tyranny in Congress than tyranny in the Executive, and because there is so much wiggle room in Article Two, presidential practice has been really important, and obviously the most important president in establishing that practice was our first president, George Washington. - [Sal] This is this idea that because it was short it left out a lot of what a president maybe could do or could not do and that's why our first president, the precedent that he set was really important for how people perceived the powers of the President. - [Jeffrey] Yes, it's a nice homonym, he was a both a president and set this important precedent and because the Framers knew that Washington was gonna be the first president, he takes office in 1789, right when the Constitution is ratified, they trusted him to establish these precedents which have been followed to this day. - [Sal] And just a little bit of historical context, in 1776 is the official founding of the country, the Declaration of Independence, the official start of the Revolutionary War. Although I'm sure you have skirmishes before that. Then we have the Articles of Confederation that get ratified in 1781. It was deemed that it was too weak, essentially of a confederation and then our Constitution gets ratified 1789, same year that Washington takes office as our first president. - [Jeffrey] Exactly right. As soon as he takes office, Washington faces this dilemma that's not answered by the Constitution. And that's does he recognize the French Revolution who have just killed and guillotined Louis XIV. So Washington has these three choices, he can stand by the monarchy and condemn the Revolution, he can recognize the French Revolutionaries as the rightful government or he can say it's not my choice and all of our former treaties are void. He consults his cabinet, decides to recognize the Revolutionaries and that establishes the precedent that Presidents now have unilateral power to recognize or de-recognize foreign governments. - [Sal] And that's interesting 'cause when we're looking at Section Two which at least talks something about treaties, it says that the President can make treaties, I'll underline this. The President can make treaties provided two thirds of the Senators present concur. It talks about ambassadors but it doesn't talk about the recognition of foreign countries. And as you point out the French Revolution, things started in 1789, as you get into the early 90's the Revolution continues and Washington says well, do we recognize the government of Louis the XVI that helped America during the French Revolution or do we recognize the Revolutionaries who seem to have a lot more in common with us in terms of their principles around government, at least of the stated ones. And he decides that well, it's not written in the Constitution here but as President, I can make that decision to recongize the Revolutionaries. - [Jeffrey] Absolutely. That leads to another series of important questions which you just flagged, who exactly gets to negotiate the treaties. And Washington has, soon after the French Revolutionary recognition, he wants to negotiate a treaty with Britain, it's called the Jay Treaty. So he secretly sends Gouverneur Morris, who's the Framer who is most responsible for drafting the Preamble to the Constitution, as an unofficial emissary or negotiator to Britain and they negotiate the treaty and then Washington designates John Jay as the envoy. The Senate doesn't endorse the diplomatic mission, Jay is getting his orders straight from Washington. After the deal is reached, then Congress, after the fact, approves of Washington's diplomatic entrepreneurship. So this establishes the really important precedent that the President can send emissaries to negotiate treaties which are approved by Congress after the fact, and that precedent is seized on by President Thomas Jefferson who negotiated for the really important purchase of the Louisiana Territory on the spot without Congressional approval and gets Senate approval after the fact. - [Sal] Famously negotiated with Napoleon Bonaparte because he frankly, his navy had been destroyed at Trafalgar so he was in no position to protect something halfway across the world (laughing). - [Jeffrey] And this drove Jefferson's critics crazy 'cause Jefferson is this big proponent, before he becomes President, of limited Presidential authority and he becomes President and he seems to expand it by seizing on this treaty negotiation power that isn't explicitly in the Constitution and hugely increases the landmass of the United States. - [Sal] And the importance of these precedents, just to go back to Section Two, it does say, "He shall have power by and with the advice "and consent of the Senate to make treaties, "provided two thirds of the Senators present concur." And your point is that the way it's written in Section Two, it's not clear whether you need the advice and consent beforehand or whether they just kind of approve after the fact. Washington, his term was from 1789 until 1797, he assumed that no, I should be able to go and very nimbly negotiate these things without having to involve the entire Senate. And once it's negotiated I need to go to them and get them to approve it. Jefferson, who was in power from 1801 to 1809, kind of further reinforced that precedent, said hey, I'm just gonna negotiate this thing and then get it approved. - [Jeffrey] That's exactly right and that allows Jefferson, when he gets approval for the Louisiana Purchase in 1803, to get the Senate to approve the treaty and to persuade the House to finance the legal structure for the new territory. He probably couldn't have done that if he hadn't worked out the negotiating details in advance. - [Sal] Another element that the second paragraph here of Section Two talks about is, with the advice and consent of the Senate, this is talked about a lot. The Constitution tries to set up the Senate as where the President goes to test his ideas, get some thinking. But Washington also decides that well, it's not that efficient to talking to all these elected officials, maybe I'll set my own body that I talk to more frequently. - [Jeffrey] That's exactly right. As we talked about before, Section Three of the Constitution seems to say that the President can consult Congress for advice in all sorts of situations. He can convene both houses. He can adjourn them and so forth, but Washington established this precedent of using a cabinet, and that's a term that doesn't appear anywhere in the Constitution. Despite the part of the Constitution that also allows the President to seek the opinions of the various officers, Washington informally sought his cabinet's advice. And today although the cabinet meets less frequently than it did before, the Presidential Cabinet or Cabinet meetings is established as a precedent in the Executive Branch. - [Sal] The last piece that this Section Two also talks about the ability of the President to make appointments, anything from ambassadors, other public ministers, consuls, judges, Supreme Court, and other officers of the United States and it also talks about Inferior Officers which are more junior officers that some Presidents can do that without getting approved by Congress. This is also up for some interpretation and Washington's precedent's important there as well. - [Jeffrey] It is, Washington was very frustrated by the Senate and basically decided to cut it out and not to seek advice and consent in person. One account says that when he left the Senate Chamber, he said he'd be damned if he ever went there again. He didn't seek the Senate's written advice before making big decisions like treaty negotiations and he just preferred to consult the Cabinet. That Cabinet had huge and important disagreements. Again we know from the musical Hamilton, Hamilton and Jefferson disagree about the constitutionality of the Bank of the United States, they both give their opinions, Washington listens to both and he sides with Hamilton over Jefferson and decides to bless the constitutionality of the bank, he got that from his Cabinet and not from Congress. - [Sal] And then finally in this appointment, to what degree can the President unilaterally take people out of their jobs, fire people, that is also left to interpretation. - [Jeffrey] That's right, Washington established the ability for President unilaterally to fire executive officers or executive department heads. Since the Senate textually has the power to hire department heads, you could have read Article Two to allow it to have a mirror role in firing them as well but the Supreme Court blessed this idea that the President can dismiss people on his own, there was an important case called Meyers Against United States which said that the Vesting Clause which we talked about earlier gave the President both the authority to execute the law and to remove executive officials. There are other cases like the Humphrey's Executor case from 1935 which said that Congress could limit the President's ability to remove certain commissioners. But the broad precedent that Washington established is that the President's unitary authority allows him alone to fire Executive Branch officials. - [Sal] Fascinating, well thanks so much Jeffrey, this is super valuable. - [Jeffrey] Thanks, great to talk.