Presidential precedents of George Washington | US government and civics | Khan Academy
Hi, this is S, 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 Article Two of the Constitution, which covers the powers of the presidency. Now we're going to jump in a little bit deeper.
You know, uh, Jeffrey, one of the things that surprises me about Article Two is that for a job as important as the president, it's an awfully short amount of text. 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. Because there is so much wiggle room in Article Two, presidential practice has been really important. Obviously, the most important president in establishing that practice was our first president, George Washington.
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, really important for how people perceived the powers of the president. Yes, he was. It's a nice homy. He was both the president and set this important precedent. Because the framers knew that Washington was going to 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.
Just a little bit of historical context: 1776 is the official founding of the country, the Declaration of Independence, the official start of the Revolutionary War. Although obviously you had skirmishes before that, then we have the Articles of Confederation that get ratified in 1781. It was deemed that it was too weak of a confederation, and then our Constitution gets ratified in 1789—the same year that Washington takes office as our first president. Exactly right.
As soon as he takes office, Washington faces this dilemma that's not answered by the Constitution, and that is: does he recognize the French Revolution, which has just killed and guillotined Louis XVI? Washington has 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, “You know, it's not my choice, and all of our former treaties are void.” He consults his cabinet and decides to recognize the revolutionaries.
That establishes the precedent that presidents now have unilateral power to recognize or derecognize foreign governments. That's interesting because 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.
As you point out, the French Revolution started in 1789, and as you get into the early '90s, the revolution continues. Washington says, “Well, do we recognize the government of Louis 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 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 recognize the revolutionaries.
Absolutely. That leads to another series of important questions, which you just flagged: who exactly gets to negotiate the treaties? Soon after the French revolutionary recognition, Washington wants to negotiate a treaty with Britain. It's called the Jay Treaty. So he secretly sends Gouverneur Morris, who’s the framer who’s most responsible for drafting the preamble to the Constitution, as an unofficial emissary or negotiator to Britain. 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. This establishes the really important precedent that the president can send emissaries to negotiate treaties, which are approved by Congress after the fact. 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 got Senate approval after the fact.
He famously negotiated with Napoleon Bonaparte because, frankly, his Navy had been destroyed at Trafalgar, so he was in no position to protect something halfway across the world. This drove Jefferson's critics crazy because Jefferson is this big proponent, before he becomes president, of limited presidential authority. He becomes president and seems to expand it by seizing on this treaty negotiation power that isn't explicitly in the Constitution and hugely increases the land mass of the United States.
The importance of these precedents, just to go back to Section Two, 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. 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, during his term from 1789 until 1797, assumed that, “No, I should be able to go and very nimbly negotiate these things without having to involve the entire Senate. 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, further reinforced that precedent, saying, “Hey, I'm just going to negotiate this thing and then get it approved.” That's exactly right. That allows Jefferson, when he gets approval for the Louisiana Purchase in 1803, to get the Senate to approve the treaty and 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.
Another element that the second paragraph here of Section Two talks about is, you know, 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 be talking to all these elected officials. Maybe I'll set my own body that I talk to more frequently.” 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 or 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. 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.
Then the last piece that, you know, this Section Two also talks about is the ability of the president to make appointments, anything from ambassadors, other public ministers, councils, judges, Supreme Court, and other officers of the United States. It also talks about inferior officers, which are more junior officers, that some presidents can do without getting approval from Congress. This is also up for some interpretation, and Washington's precedent is important there as well.
It is. Washington was very frustrated by the Senate and basically decided to cut it out and not seek advice and consent in person. One account says that when he left the Senate chamber, he said he'd be damned if they ever went there again. He didn't seek the Senate's written advice before making big decisions like treaty negotiations. He just preferred to consult the cabinet. That cabinet had huge and important disagreements. Again, we know from the musical Hamilton that Hamilton and Jefferson disagreed about the constitutionality of the Bank of the United States. They both gave their opinions, Washington listened to both, and he sided with Hamilton over Jefferson and decided to bless the constitutionality of the bank. He got that from his cabinet and not from Congress.
Finally, in this appointment, to what degree can the president unilaterally take people out of their jobs and fire people? That is also left to interpretation. That's right. Washington established the ability for the 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 Myers 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. But 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. However, the broad precedent that Washington establishes is that the president's unitary authority allows him alone to fire executive branch officials.
Well, fascinating! Well, thanks so much, Jeffrey. This was super valuable. Thanks! Great to talk!