Alexander Hamilton held in Federalist #75 that the Senate’s confirmation power would prevent the president from appointing relatives or sycophants to the Cabinet. And in Federalist #77, he assumed that “the consent of [the Senate] would be necessary to displace as well as to appoint.” This contention was ultimately rejected by the first Congress, but only by a nine-to-nine vote in the Senate in 1789, with Vice President Adams casting the deciding vote against a requirement of Senate concurrence in removals.
Nearly eighty years later, Congress imposed just such a requirement by the Tenure of Office Act of 1867. The Senate came within one vote of the two-thirds majority necessary for enforcing this provision in the presidential impeachment trial of Andrew Johnson. The Tenure of Office Act would be repealed in 1887, but the view that the Constitution definitely lacked a requirement of Senate consent to removals without cause was not clearly established until the Myers case of 1926, over the vehement dissenting opinions of Justices Holmes, Brandeis, and McReynolds. Brandeis declared that the constitutional separation of powers existed “not to promote efficiency but to preclude the exercise of arbitrary power, to save the people from autocracy.”
There are several other examples of Congress imposing reasonable limitations on the president’s ability to direct every part of the executive branch. Congress has reposed in the judiciary the appointment of court clerks and the appointment of interim United States attorneys who arguably perform executive functions.
Aside from the confirmation and removal issue, the Constitution also circumscribes the president’s ability to command the Executive Branch by the provisions of Article II limiting the duration of recess appointments and by the provision allowing Congress to vest the power of appointment of “inferior officers” in “the Heads of Departments.”
Moreover, in at least two respects, Congress has further diluted the unitary power of the president: the Twenty-fifth Amendment, ratified in 1967, gives “the principal officers of the executive departments” the power to remove a disabled president. A 1967 statute also limits the ability of both the president and other federal officials to appoint relatives to positions. Both these measures are inconsistent with a pure “unitary executive.”