The President vs. The Senate

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The battle over John Tower’s nomination as Secretary of Defense earlier this year goes down as one of those struggles that whirled trivial and profound issues in the blender of journalism and produced a somewhat mystifying concoction. Was the senator denied confirmation because he was too fond of wine and women? Or was he tainted by coziness with the defense contractors that he would have to oversee? Was he given a fair hearing or drowned in innuendo, leak by leak? Or booby-trapped by an improved but suspiciously new standard of public morality?

No matter. The important thing is that he was rejected. The Senate, as constitutionally authorized, refused its consent to President Bush’s choice, thereby adding another chapter to a long history of conflict over the boundaries of Executive power. Republicans argued that by custom the President is allowed to pick his team unhampered. But this is not quite so. As early as August 1789 Washington’s nomination of Benjamin Fishbourn as “naval officer” at Savannah was turned down by the Senate. The door was left open for Washington to appear in person to defend his choice, but he thought it would be undignified and perhaps inhibiting to do so, “for as the President has a right to nominate without assigning his reasons, so has the Senate a right to dissent without giving theirs.”

If Presidents sometimes succumb to thinking themselves imperial, senators likewise confuse themselves now and then with peers of the realm. After all, they serve a longer term than the President, and they originally represented sovereign states, giving them a kind of ambassadorial stature. (Until 1913, in fact, they were chosen by state legislators.) Conflict is inevitable. The uncontested nadir of presidential-senatorial relationships was the Senate’s failure, by only a single vote, to oust Andrew Johnson in 1868. Less well known is an earlier occasion when the Senate stretched its constitutional mandate and did not merely deny the President an appointment or a treaty but officially censured him—the only such occasion in our history. Not surprisingly, the Chief Executive in question was the stormy Andrew Jackson, and he did not take the chastisement meekly.

 

The episode is most recently told in short form in a fine book that has just reached me, The Senate, 1789–1989: Addresses on the History of the United States Senate, by Sen. Robert C. Byrd, available from the U.S. Government Printing Office. The book is a story in itself. It consists of thirty-nine talks—out of more than one hundred—delivered by the West Virginia Democrat and former majority leader in the Senate chamber when business and attendance were light, usually on Fridays. Byrd began them one such Friday in 1980 to edify his granddaughter and some of her fifth-grade friends, who were visiting in the gallery. Soon the talks became a regular event. Helping make them so was the Senate Historical Office. Among other duties, the SHO, ably headed by Dr. Richard Baker, organized the research and preparation of the senator’s material.

As Byrd relates, the stage for the censure was set by Jackson’s war on the Second Bank of the United States. Chartered by Congress in 1816, the bank was a private enterprise in which the federal government held stock and, more important, in which it deposited all the funds belonging to the United States government, there being no independent Treasury at the time. These huge holdings made the Bank of the United States the country’s major lender, and it therefore had de facto power to tighten or loosen credit throughout the country by its policies. The power was freely used by its arrogant, brilliant president, the Philadelphia patrician Nicholas Biddle, who looked dimly on state banks and thought of Andrew Jackson as a dangerous demagogue and an uncouth barbarian.

Jackson reciprocated the hostility. He swore to take the bank’s life and got his chance in 1832, when Congress prematurely passed a bill to recharter the institution when its existing contract expired in 1836. Jackson had the votes to make his veto of the bill stick—and he won reelection. But the Senate of the Twenty-third Congress, chosen in that same year, would contain an anti-Jackson majority.

Under the rules then in force, however, the new Congress would not convene until December of 1833, and Jackson determined to remove the government deposits immediately and so ordered his Secretary of the Treasury, Louis McLane of Delaware. McLane demurred. The old charter was still alive, and he was not at all sure that Jackson had the authority to flout a congressional enactment. Jackson kicked him upstairs to the State Department and replaced him with William J. Duane, a Philadelphia Irishman who hated the bank as much as the President himself did. But Duane, too, feared setting off a political fire storm and also worried (correctly) that the move might create financial havoc.

So Jackson fired him too. Finally he named Roger B. Taney, of Maryland, to the post. Taney took office in September and immediately began transferring the deposits to selected “pet banks” in the states. When Congress met, it faced an accomplished and irreversible action. But the anti-Jackson Senate could still protest.