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Scanning through a few newspapers today, I've seen what looks to be the newest GOP talking point about Attorneygate.  The line of argument goes:

"What part of 'serves at the pleasure of the president' don't you understand?"

Great question, right?

Well, maybe.

Not.

First I want to give credit where credit is due here.  There was a great overlooked diary yesterday by Commonweal on this topic.

I want to draw out a key point, because the reference in this diary demolishes the GOPs talking point.

First: Where did "serves at the pleasure of the president come from?" and what exactly does this mean?  

This isn't a line that comes from the Constitution.  So what is it about?  Where does it come from?

Well Thom Hartman over at Commondreams found the answer.

If we step back in the "way back machine" it turns out that on June 17, 1789 our Founding Fathers in congress were grappling with exactly this question.  The Constitution directly addresses the nomination process--e.g. the Senate's role of "advice and consent" (see Alexander Hamilton, Federalist #76 for more background)--and how executive office political appointees are hired, but it does not explain how they are supposed to be fired.

Well on that day in 1789 congress was exploring two possibilities:

  1. The Congress decides when to fire.
  1. The President has this authority.

Ultimately, the discussion settled on option #2.  The reasoning was sound--if you located responsibility within the Executive you will have clear lines of responsibility up to the president.  So the president should have the ability to fire an officer if the officer was found to be corrupt, or incompetent.  The alternative would be impeachment in the congress; however, this process would be too cumbersome; too "circuitous" in operation in most cases.

It is true by a circuitous operation, he [The president] may obtain an impeachment, and even without this it is possible he may obtain the concurrence of the senate for the purpose of displacing an officer; but would this give that species of control to the executive magistrate which seems to be required by the constitution? I own if my opinion was not contrary to that entertained by what I suppose to be the minority on this question, I should be doubtful of being mistaken, when I discovered how inconsistent that construction would make the constitution with itself. I can hardly bring myself to imagine the wisdom of the convention who framed the constitution, contemplated such incongruity.

But, our wily Constitutional Framer James Madison was a few steps ahead of the curve.  

OK, we've dealt with the easy case--removing a corrupt and/or incompetent officer. But what about a case where the officer is doing a good to great job?  

Can the president fire whoever he wants for whatever reason?

Let's read what James Madison had to say:

Now if this is the case with an hereditary monarch, possessed of those high prerogatives and furnished with so many means of influence; can we suppose a president elected for four years only dependent upon the popular voice impeachable by the legislature little if at all distinguished for wealth, personal talents, or influence from the head of the department himself; I say, will he bid defiance to all these considerations, and wantonly dismiss a meritorious and virtuous officer? Such abuse of power exceeds my conception: If any thing takes place in the ordinary course of business of this kind, my imagination cannot extend to it on any rational principle.

WOW. If the president were to wantonly dismiss a meritorious and virtuous officer, it would be an ABUSE that is beyond Madison's conception.

Strong words.

(Well how about 7, including 5 within the span of 24 hours?)

So no, the president CANNOT hire and fire whoever he (or she) wants for whatever reason.

But let us not consider the question on one side only, there are dangers to be contemplated on the other. Vest this power in the senate jointly with the president, and you abolish at once that great principle of unity and responsibility in the executive department, which was intended for the security of liberty and the public good. If the president should possess alone the power of removal from office, those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; the lowest officers, the middle grade, and the highest, will depend, as they ought, on the president, and the president on the community. The chain of dependence therefore terminates in the supreme body, namely, in the people; who will possess besides, in aid of their original power, the decisive engine of impeachment.

In other words, in James Madison's view: If a president were to fire a meritorious and virtuous officer WITHOUT just cause, it would be grounds for IMPEACHMENT.

But, what does the Father of the Constitution know about the operation and application of the U.S. Constitution?

If we ever needed further clarification from the White House and its political officers (e.g. Rove and Miers) about why they should be COMPELLED to testify, and WHY it MUST provide documentation on the firing of 7 meritorious and virtuous officers, there it is.  

Originally posted to NotGeorgeWill on Wed Mar 28, 2007 at 10:21 PM PDT.

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