Subordinate Executive Officers

Power and Duty of the President in Relation to Subordinate Executive Officers

If the law casts a duty upon a head of department eo nomine, does the President thereupon become entitled by virtue of his duty to “take Care that the Laws be faithfully executed,” to substitute his own judgment for that of the principal officer regarding the discharge of such duty? In the debate in the House in 1789 on the location of the removal power, Madison argued that it ought to be attributed to the President alone because it was “the intention of the Constitution, expressed especially in the faithful execution clause, that the first magistrate should be responsible for the executive department,” and this responsibility, he held, carried with it the power to “inspect and control” the conduct of subordinate executive officers. “Vest,” said he, “the power [of removal] in the Senate jointly with the President, and you abolish at once the great principle of unity and responsibility in the executive department, which was intended for the security of liberty and the public good.” 1

More about Subordinate Executive Officers

But this was said with respect to the office of the Secretary of State, and when shortly afterward the question arose as to the power of Congress to regulate the tenure of the Comptroller of the Treasury, Madison assumed a very different attitude, conceding in effect that this office was to be an arm of certain of Congress's own powers and should therefore be protected against the removal power.2 And in Marbury v. Madison,3 Chief Justice Marshall traced a parallel distinction between the duties of the Secretary of State under the original act which had created a “Department of Foreign Affairs” and those which had been added by the later act changing the designation of the department to its present one. The former were, he pointed out, entirely in the “political field,” and hence for their discharge the Secretary was left responsible absolutely to the President. The latter, on the other hand, were exclusively of statutory origin and sprang from the powers of Congress. For these, therefore, the Secretary was “an officer of the law” and “amenable to the law for his conduct.” 4

Resources

References

This text about Subordinate Executive Officers is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

Notes

[Footnote 1] 1 ANNALS OF CONG. 495, 499 (1789).

[Footnote 2] Id. at 611-612.

[Footnote 3] 5 U.S. (1 Cr.) 137 (1803).

[Footnote 4] 5 U.S. (1 Cr.) at 165-66.