 | 202409 17Constitution Day 2024: The Senate’s Power of Advice and Consent on Nominations
September 17, 2024
Through its power of advice and consent on nominations, the Senate serves a pivotal role in the complex system of check and balances established by the framers of the Constitution. While the way in which the Senate has exercised that power has evolved over the course of its history, it has consistently fulfilled this important responsibility. This selection of historical documents relates to the establishment and exercise of the Senate’s power of advice and consent on nominations.
To encourage Americans to learn more about the Constitution, Congress designated September 17—the date in 1787 when delegates to the federal convention signed the Constitution—as Constitution Day.
Throughout the summer of 1787, the framers of the Constitution debated where to place the power to make executive and judicial appointments. Eventually, they settled on the concept of a shared power—the president would make appointments with the “advice and consent” of the Senate. Article II, section 2 of the United States Constitution provides that the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for.”
The president nominates all federal judges in the judicial branch and specified officers in cabinet-level departments, independent agencies, the military services, the Foreign Service, and uniformed civilian services, as well as U.S. attorneys and U.S. marshals. The vast majority are routinely confirmed, while a small but sometimes highly visible number of nominees fail to receive action or are rejected by the Senate. In its history, the Senate has confirmed 128 Supreme Court nominations and well over 500 cabinet nominations.
The following is a selection of historical documents related to the establishment and exercise of the Senate’s power of advice and consent on nominations.
John Adams’s Thoughts on Government, 1776
Written in the spring of 1776, John Adams’s Thoughts on Government was first drafted as a letter to North Carolina’s William Hooper, a fellow congressman in the Continental Congress, who had asked Adams for his views on forming a plan of government for North Carolina’s constitution. Adams developed several additional drafts for other colleagues in the following months, and the letter was ultimately published as a pamphlet. Adams’s plan called for three separate branches of government (including a bicameral legislature), which operated within a system of checks and balances, including a shared appointment power. Drawing from similar language in a 1691 Massachusetts’s colonial charter, and referencing a part of the legislative body he called the “Council,” Adams recommended that “The Governor, by and with and not without the Advice and Consent of the Council should nominate and appoint all Judges, Justices, and all other officers civil and military, who should have Commissions signed by the Governor.” Several years later, in 1780, Adams drew from his plan as he helped to write Massachusetts's constitution, which would include the shared appointment power and the phrase “advice and consent.”
In 1787, during the Constitutional Convention, the appointment or nomination clause split the delegates into two factions—those who wanted the executive to have the sole power of appointment, and those who wanted the national legislature, and more specifically the Senate, to have that responsibility. The latter faction followed precedents established by the Articles of Confederation and most of the state constitutions, which granted the legislature the power to make appointments, while the Massachusetts constitution, with its divided appointment power, provided an alternative model, which was ultimately selected for the U.S. Constitution.
Report of the Grand Committee, September 4, 1787
After debating the appointment clause over the course of several weeks during the Constitutional Convention, the framers eventually settled on the concept of a shared power. Initially, the delegates granted the president the power to appoint the officers of the executive branch and, given that judges’ life-long terms would extend past the authority of any one president, allowed the Senate to appoint members of the judiciary. On September 4, 1787, however, as the proceedings of the convention were nearing conclusion, the Committee of Eleven (also known as the “Grand Committee”)—a special committee consisting of one delegate from each represented state that regularly met to resolve specific disagreements—reported an amended appointment clause. Unanimously adopted on September 7 and based on the Massachusetts constitutional model, which had been recommended earlier during the course of the debates by Massachusetts delegate Nathaniel Gorham, the clause provided that the president shall nominate and, with the advice and consent of the Senate, appoint the officers of the United States.
Nomination of Alexander Hamilton to be Secretary of the Treasury, 1789
On September 11, 1789, the new federal government under the Constitution took a large step forward. On that day, President George Washington sent his first cabinet nomination to the Senate for its advice and consent. Minutes later, perhaps even before the messenger returned to the president’s office, senators approved unanimously the appointment of Alexander Hamilton to be secretary of the treasury.
Hamilton’s place in history as the Senate’s first consideration and confirmation of a cabinet nominee is fitting as he had participated in the creation of this shared power. At the Constitutional Convention, and in the subsequent campaign to ensure the Constitution’s ratification, Hamilton was convinced that Senate confirmation of nominees would be a welcome check on the president and supported provisions that divided responsibility for appointing government officials between the president and the Senate. Defending the structure of the appointing power in Federalist 76, Hamilton wrote that the “cooperation of the Senate” in nominations “would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.”
Report of the Senate Committee on the Judiciary Concerning the Nomination of Joseph L. Smith to be Judge of the Superior Court of the Territory of Florida, 1822
The way in which the Senate has exercised its power of advice and consent on nominations has evolved over the course of its history. Before the 1860s, the Senate considered most presidential nominations without referring them to a committee for review or investigation. There were a few exceptions, however, including Joseph L. Smith (nominated by President James Monroe in 1822 to be judge of the Superior Court for the Territory of Florida), who was investigated by the Judiciary Committee, as shown by this report. “It was suggested to the committee that this gentleman had been a colonel in the Army of the United States, and had been lately cashiered upon charges derogatory to his moral character,” the report begins. Subsequently laid out in the report, the committee’s investigation revealed that charges against Smith were refuted by credible witnesses, and he was restored to his rank. “On a full view of all the facts and circumstances,” the report concluded, “the committee could see no objection that ought to operate against the appointment of Col. Smith, and therefore respectfully recommend…that the Senate do advise and consent to the appointment.” Persuaded by the findings of the committee, the full Senate confirmed Smith’s nomination.
Nomination Withdrawal, George H. Williams to be Chief Justice of the Supreme Court of the United States, 1874
In 1868 the Senate adopted rules to provide for more routine referral of nominations to "appropriate committees," but investigations of judicial nominees typically took place only in cases where the committee received credible allegations of wrongdoing on the part of a nominee. For example, in 1873 the Judiciary Committee, led by Chairman George Edmunds of Vermont, investigated allegations of financial misconduct against Attorney General George H. Williams, who had been nominated to be chief justice of the United States by President Ulysses S. Grant. After an investigation, the committee informed the president that Williams would likely not be confirmed and Williams asked that his name be withdrawn.
The Senate’s formal order of Williams’s withdrawal begins with, “In Executive Session.” The confirmation of presidential nominations is one of the Senate’s executive (rather than legislative) constitutional duties. This task is therefore performed in executive session, separate from the Senate’s legislative proceedings. Prior to 1929, the Senate rules stipulated that nominations be debated in closed session. These closed executive proceedings were made open on occasion when the Senate voted to ”remove the injunction of secrecy,” and reports of these proceedings were often leaked to the press.
Senator Wilkinson Call to the Chairman of the Senate Judiciary Committee, on the Nomination of Charles Swayne to be U.S. District Judge for the Northern District of Florida, 1890
In its first decade, the Senate established the practice of senatorial courtesy in which senators expected to be consulted on all nominees to federal posts within their states and senators deferred to the wishes of a colleague who objected to an individual nominated to serve in his or her state. If a president insisted on nominating an individual without consultation with or over the objections of a senator, senators merely had to announce in committee or before the full Senate that a nominee was “personally obnoxious” or “personally objectionable” to them without any further explanation. They could depend on the deference of Senate colleagues in rejecting the nominee. While the custom of senatorial courtesy was firmly established by the late 19th century, senatorial objections did not always doom the nomination, especially if a senator was of the opposing party from the president or the Senate majority. In 1890, with Senate Republicans in the majority and Republican Benjamin Harrison in the White House, Judiciary Committee chairman George Edmunds used this form letter to solicit the opinion of Florida Democratic senator Wilkinson Call about the nomination of Charles Swayne to be U.S. District Judge for the Northern District of Florida. “I do not consider him to be qualified either mentally or morally for the office of judge,” Call replied. Despite Call’s objection, and the objection of his fellow Florida senator Samuel Pasco (also a Democrat), Swayne’s nomination cleared the Senate.
Blue Slip, Signed by Senator W. Lee O’Daniel, 1943
The Judiciary Committee formalized a version of senatorial courtesy through use of the “blue slip,” a blue sheet of paper on which a senator could register support for or opposition to a judicial nominee to serve in his or her state. The process has varied over the years, with different committee chairs giving varied weight to a negative or non-returned blue slip, but the system has endured, providing home-state senators the opportunity to be heard by the Judiciary Committee. During a nomination debate on the Senate floor in 1960, William Proxmire of Wisconsin called senatorial courtesy “the ultimate senatorial weapon,” a “nuclear warhead intercontinental ballistic missile of Senate nomination action.” While there have been changes to the rules and customs governing Senate advice and consent over the past half century—for example, senators no longer announce in the Senate Chamber that a nominee is “personally obnoxious” to them—individual senators continue to influence the nomination and confirmation process.
Hearings on the Nomination of Sandra Day O’Connor to be an Associate Justice of the Supreme Court, 1981
During the 20th century, Senate committees hired staff to handle nominations and formalized procedures and practices for scrutinizing nominees. In 1939 Felix Frankfurter became the first nominee to appear before the Judiciary Committee to answer questions in a public hearing, and Dean Acheson became the first nominee for secretary of state to testify in open session before the Foreign Relations Committee 10 years later. By the 1950s, committees began routinely holding public hearings and requiring nominees to appear in person. By the 1990s, Judiciary Committee staff included an investigator who worked on nominations. In 1981 Sandra Day O’Connor of Arizona appeared before the Judiciary Committee as the first woman nominated to the serve on the Supreme Court. O’Connor’s nomination hearing was the first to be televised, and today all committee nomination hearings are broadcast or live-streamed on the Internet.
Today, committees have the option of reporting a nominee to the full Senate with a recommendation to approve ("reported favorably"), with a recommendation to not approve ("reported adversely"), or with no recommendation. Reporting adversely—sometimes because senatorial courtesy was not observed—has become rare. Since the 1970s, committees have on occasion, though still infrequently, voted not to report a nominee to the full Senate, effectively killing the nomination. More frequently, committees do not act on nominations that do not have majority support to move forward.
Through its power of advice and consent on nominations, the Senate serves a pivotal role in the complex system of check and balances established by the framers of the Constitution in 1787. While the way in which the Senate has exercised that power has evolved over the course of its history, it has consistently fulfilled its constitutional responsibility of advice and consent, playing a role both in the selection and confirmation of nominees.
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 | 202401 31The Evolution of the Response to the State of the Union
January 31, 2024
Each year, before a joint session of Congress, the president fulfills his or her constitutional duty to "from time to time give to the Congress Information of the State of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient." Today’s State of the Union Address follows well established protocols and rituals, but one aspect in particular—the opposition response—is a modern practice that has evolved to address a problem faced by Congress in its earliest years.
Each year, before a joint session of Congress, the president fulfills his or her constitutional duty to "from time to time give to the Congress Information of the State of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient." The ceremony that we know today as the State of the Union Address follows well established protocols and rituals, but it has evolved a great deal since 1790, when President George Washington delivered his first annual address to Congress. One aspect in particular—the opposition response—is a modern practice that has developed to address a problem faced by Congress in its earliest years.1
In January 1790, as members of both the House and Senate gathered to begin the second session of the First Congress, President Washington wrote to John Adams (who as vice president also served as president of the Senate) that he wished to address both houses in a joint session as soon as they reached a quorum. The two houses achieved quorums on January 7 and informed the president they were ready to receive his message. On January 8, the president arrived at Federal Hall at 11:00 a.m. and proceeded to the Senate Chamber, where, accompanied by a few of his personal aides, he delivered his address to senators, representatives, and cabinet members. In his brief speech, Washington congratulated Congress on the “present favorable prospects of our public affairs,” highlighted the progress of the young nation, and made policy suggestions, including calling for the establishment of a national militia and a uniform system of currency.2
After Washington departed Federal Hall and representatives returned to their chamber, the Senate appointed a committee “to prepare and report the draft of an Address to the President of the United States, in answer to his Speech delivered this day to both Houses of Congress, in the Senate Chamber.” In keeping with the traditional ceremonial exchange between British Parliament and the King, both the Senate and House had offered a formal response to the president’s first inaugural address in April 1789, and both chambers prepared to follow that same practice with Washington’s annual message. Not all senators agreed, however, as to how the Senate should respond to the president’s speech. According to Pennsylvania senator William Maclay, South Carolina senator Pierce Butler thought that “the Speech was committed rather too hastily” and “made some remarks on it.” When Vice President Adams called Butler to order for his criticism, Maclay wrote that Butler “resented the call, and some Altercation ensued.”3
A few days later, the committee presented a draft response to the Senate, which assured the president that the Senate would address each issue that he mentioned, point by point. Maclay, who was becoming a staunch opponent of the Washington administration, objected to the response. He called it “the most Servile Echo” he ever heard, and while the Senate did amend some sections of the original draft, Maclay complained that many clauses were passed without roll-call votes, leaving opponents to accept them “in silent disapprobation.” Meanwhile, the House of Representatives followed the same procedure, meeting to collaborate on a response, a process that proved both “time-consuming and contentious.” Once the House and Senate finally approved their drafts, each body then agreed to wait on the president en masse at his residence to present their responses in person. Following these formal presentations, the president then delivered his own responses.4
The ceremonial spectacle of these proceedings struck some members as obsequious and unnecessary, including Maclay, who worried that the response could be considered by the president’s administration as a tacit approval of its policies. “It was a Stale ministerial Trick in Britain, to get the Houses of parliament to chime in with the speech, and then consider them as pledged to support any Measure which could be grafted on the Speech.” A foreign observer who witnessed both the president’s speech and Congress’s responses noted that the exchange “looked completely like that practiced in England between the King and Parliament” except for the fact that “the next day not one voice was raised in the two Houses to attack any part whatever of the address.” The opposition remained silent.5
As partisan factions developed during Washington’s administration, the process of drafting and agreeing to a single institutional response became impractical. Washington interpreted the Constitution’s directive “from time to time” to mean once a year, and every president since Washington has followed this precedent. This meant that year after year, both the Senate and House spent days, and sometimes weeks, during Washington’s presidency tediously debating their respective responses paragraph by paragraph, arguing over word choice and overall tone. In addition, those in the Senate minority remained frustrated with Senate responses that supported administration policies and ignored dissenting views.
In December 1795 Washington delivered his annual address at the first session of the Fourth Congress, six months after the Senate had convened in a special executive session to consider the controversial Jay Treaty. The Senate’s rancorous debate over the treaty had deepened the partisan divisions among senators, with the majority pro-administration Federalists supporting it and anti-administration Democratic Republicans voting in opposition. The Senate approved the treaty for ratification by the slimmest margin. In his speech, Washington referred to the treaty, declaring that the “summary of our affairs, with regard to the Foreign powers between whom and the United States controversies have subsisted . . . opens a wide field for consoling and gratifying reflections.”6
The treaty’s opponents felt neither consoled nor gratified. When the draft of the Senate’s response included similar praise for the treaty, the Democratic-Republicans objected. Virginia senator Stevens Thomson Mason argued that referring to the treaty in this way served only to rekindle animosities among senators. “The minority on that occasion were not now to be expected to recede from the opinions they held then, and they could not therefore join in the indirect self-approbation which the majority appeared to wish for.”7
Virginia senator Henry Tazewell not only objected to the passage about the treaty, but he questioned the practice of a congressional response altogether, asking “what had given rise to the practice of returning an answer of any kind to the President’s communication to Congress in the form of an Address? There was nothing . . . in the Constitution, or in any of the fundamental rules of the Federal Government which required that ceremony from either branch of the Congress.” Tazewell’s observation was true, but many in Congress clung tight to the pageantry and ceremonial trappings of the executive-legislative exchange.8
Despite the protests of the Democratic-Republicans, attempts to remove the offending passages from the Senate’s response failed. The Senate then approved what was essentially the majority’s response to the annual address on a party-line vote of 14-8. While responses to Washington’s remaining annual addresses and those of John Adams do not appear to have been debated quite as intensely, the strong Federalist majorities in the Senate of that era meant that the minority voice remained unheard.9
When Congress moved from Philadelphia to the newly created capital city of Washington in the District of Columbia in 1800, the tradition of the executive-legislative exchange continued. President Adams presented his final annual address to Congress in person at the Capitol, and both the Senate and House presented responses to the president at his new residence. Unlike Philadelphia, however, where Congress Hall was a mere block from the president’s residence, in the District of Columbia the President’s House was more than a mile from the Capitol, making the trip less convenient. This was one of the reasons given by President Thomas Jefferson in 1801 when he chose to send his message to Congress in writing. He further suggested that the Senate and House need not prepare their official replies:
The circumstances under which we find ourselves at this place rendering inconvenient the mode heretofore practiced, of making by personal address the first communications between the legislative and executive branches, I have adopted that by message, as used on all subsequent occasions through the session. In doing this I have had principal regard to the convenience of the legislature, to the economy of their time, to their relief from the embarrassment of immediate answers, on subjects not yet fully before them, and to the benefits thence resulting to the public affairs.10
For the rest of the 19th century, and into the 20th, presidents followed Jefferson’s example, and Congress stopped officially replying to the president. The annual message to Congress became a lengthy report that laid out the activities and financial needs of the executive branch and included policy recommendations and a summary of foreign affairs. This was the case until 1913, when Woodrow Wilson announced that he would read his annual address to Congress in person.
Wilson understood the power of public opinion in pressuring Congress to support his agenda, so he tailored his speech to appeal to a much wider audience—the American public. He kept the address short but visionary, hoping to persuade and move his audience through emotional rhetoric. According to press reports, Wilson’s in-person performance was a “triumph.” His successors continued the tradition of in-person delivery, and the State of the Union Address became a platform that elevated the priorities of the president and his party. Even more so than during the nation’s founding era, members of the opposing political party found themselves without a formal role to play in the annual event. The advent of television in the 1940s and ʼ50s and the shift of the speech delivery from daytime to prime time in 1965 further expanded the reach of the president’s message, prompting minority leadership in Congress to finally develop a coordinated response. In 1966 Senate Minority Leader Everett Dirksen and House Minority Leader Gerald Ford recorded a 30-minute rebuttal which aired on major television networks a week after the president’s speech. The opposition response was born.11
Today, the opposition response is broadcast live immediately following the president’s speech. It has become an integral part of this annual ritual, anticipated and discussed almost as much as the address itself—thanks in part to social media platforms. No doubt the Democratic-Republicans of the early 19th century would have appreciated this innovation. What began in the Senate and House as congressional responses expressing the approbation of the president’s majority party has evolved into an opposition response by the other national party, reflecting the complexity of both party politics and executive-legislative relations and demonstrating the delicate balance of power between discordant forces in our system of government.
Notes
1. U.S. Constitution, Article II, section 3.
2. Senate Journal, 1st Cong., 2nd sess., January 8, 1790, 102–4.
3. Ibid., 104; Senate Journal, 1st Cong., 1st sess., 20, 22–23, 26–27; Kenneth R. Bowling and Helen E. Veit, eds., Diary of William Maclay and Other Notes on Senate Debates, vol. 9 of Documentary History of the First Federal Congress of the United States of America, March 4, 1789–March 3, 1791, eds. Linda Grant De Pauw et al. (Baltimore: The Johns Hopkins University Press, 1986), 180.
4. Bowling and Veit, Diary of William Maclay, 181; “A ‘Troublesome and Greatly Derided Custom’ — Answering the Annual Message,” History, Art, & Archives, United States House of Representatives, Whereas: Stories from the People’s House, https://history.house.gov/Blog/2016/January/1-12-LyonResponse/, accessed January 19, 2024.
5. Bowling and Veit, Diary of William Maclay, 181; Letter from Louis Guillaume Otto to Comte de Montmorin, January 12, 1790, in Charlene Bangs Bickford, Kenneth R. Bowling, Helen E. Veit, and William Charles diGiacomantonio, eds., Correspondence, Second Session: October 1789–14 March 1790, vol. 18 of Documentary History of the First Federal Congress of the United States of America, March 4, 1789–March 3, 1791, eds. Linda Grant De Pauw et al. (Baltimore: Johns Hopkins University Press, 2012), 196–97.
6. Annals of Congress, 4th Cong., 1st sess., 11.
7. Ibid., 15–16.
8. Ibid., 21.
9. Ibid., 22–23.
10. Senate Journal, 7th Cong., 1st sess., December 8, 1801, 156.
11. James W. Ceaser, Glen E. Thurow, Jeffrey Tulis and Joseph M. Bessette, “The Rise of the Rhetorical Presidency,” Presidential Studies Quarterly 11, No. 2 (Spring, 1981): 158–71; “Wilson Triumphs with Message,” New York Times, December 3, 1913, 1.
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 | 202306 12Chairman J. William Fulbright and the 1964 Tonkin Gulf Resolution
June 12, 2023
In early August 1964, two reported attacks on American navy ships in the waters of the Tonkin Gulf prompted President Lyndon B. Johnson to ask Congress to approve a joint resolution authorizing the use of force in Southeast Asia without a congressional declaration of war. Senator J. William “Bill” Fulbright of Arkansas ensured swift passage of what came to be known as the Tonkin Gulf Resolution, a role that he would later come to regret.
In early August 1964, two reportedly unprovoked attacks on American navy ships in the waters of the Tonkin Gulf near North Vietnam became key events in the evolution of congressional war powers. For nearly a decade, American policymakers had viewed South Vietnam as a critical Cold War ally. Republican and Democratic administrations had provided the independent South Vietnamese government with financial assistance and military advisors to combat ongoing threats from its communist neighbor, North Vietnam. In the summer of 1964, the U.S. military presence in South Vietnam included approximately 12,000 military advisors, as well as a naval presence in the waters of the Tonkin Gulf. On August 2, an American destroyer, the USS Maddox, came under fire by North Vietnamese boats while supporting a South Vietnamese covert operation in the Gulf. Two days later, the commander of the Maddox reported “being under continuous torpedo attack” while on patrol with a second destroyer, the USS C. Turner Joy.1
After the second reported attack, President Lyndon B. Johnson summoned congressional leaders, including Senate Foreign Relations Committee chairman J. William “Bill” Fulbright of Arkansas, to the White House for a briefing. Citing the second unprovoked attack, President Johnson informed lawmakers that he would be launching retaliatory strikes against North Vietnamese targets, a unilateral action that he believed he could take in his constitutional capacity as commander in chief of the armed forces. Like President Dwight D. Eisenhower before him, Johnson wished to secure congressional approval—in advance—for any future military actions he may wish to take to protect national interests in the region. Consequently, Johnson asked lawmakers to approve the Southeast Asia Resolution to “promote the maintenance of international peace and security in southeast Asia,” by authorizing the commander in chief “to take all necessary measures to repel any armed attack against the … United States and to prevent further aggression.” Fulbright and his colleagues voiced their support for the air strikes and the resolution. Hours later, Johnson publicly announced that he had ordered attacks on North Vietnam while affirming that his administration did not seek a wider war.2
The next morning, Johnson personally asked Fulbright to shepherd the administration’s joint Southeast Asia Resolution, which came to be known as the Tonkin Gulf Resolution, swiftly through the Senate. The administration had modeled it after two 1950s resolutions that had provided President Dwight D. Eisenhower with congressional authorization to use military force if necessary to defend allies from Communist aggressors in Formosa (today Taiwan) and the Middle East. “The Constitution assumes that our two branches of government should get along together,” Eisenhower later recalled of the effort to obtain congressional authorization for the use of military force. He preferred that any military response be an expression of the will of the legislative and executive branches. Under Article 1, Section 8, of the Constitution, however, only Congress has the authority to declare war. During debates about the Eisenhower resolutions, Fulbright had expressed misgivings that Congress was relinquishing its constitutional war powers to the executive branch. Nevertheless, Fulbright did support the Formosa Resolution in 1955. (He was not present to cast a vote for the Middle East Resolution in 1957.) While President Eisenhower did not take the nation to war under those congressional authorizations, Congress had set a precedent in granting an administration such broad authority.3
Despite his earlier reservations, in 1964 Senator Fulbright readily agreed to shepherd the Tonkin Gulf Resolution through the Senate. Fulbright viewed President Johnson as a long-time friend and political ally. In 1959, while serving as Senate majority leader, Johnson had helped maneuver Fulbright into the coveted position of chairman of the Foreign Relations Committee, and Leader Johnson fondly referred to Fulbright as “my secretary of state.” In 1960 Fulbright had supported Johnson’s candidacy in the Democratic presidential primary. Johnson won the vice-presidential nomination instead and in 1961 assumed the critical role of congressional liaison for President John F. Kennedy’s administration. In that capacity, Johnson’s warm relationship with Fulbright continued.4
As the Senate’s undisputed foreign policy expert, Fulbright understood that President Johnson had inherited a complex situation in Vietnam after Kennedy’s assassination in 1963. The domestic politics of responding to the North Vietnamese attacks on U.S. ships weighed on Fulbright’s mind as well. The resolution came “in the beginning of the contest between Johnson and [Barry] Goldwater” in the 1964 presidential election, Fulbright later recalled. “I was just overpersuaded … in my feelings that I ought to support the president.” Fulbright accepted the responsibility of delivering for the president a strong bipartisan political victory just months before the election.5
Shortly after Johnson announced the retaliatory strikes and his intention to seek congressional authorization for future military action, Americans rallied around the commander in chief. “Southeast Asia is our first line of defense; when an enemy attacks us there, he is in principle, attacking us on our native land,” declared Senator Frank Lausche of Ohio. Polls showed that the Johnson administration had the overwhelming support of the American public—with 85 percent supporting its response. A desire for peace must “not be misconstrued as weakness,” wrote the Philadelphia Inquirer. The Los Angeles Times blamed “Communists” for “escalat[ing] the hostilities—an escalation we must meet.” Johnson’s political rival endorsed his actions, too. “We cannot allow the American flag to be shot at anywhere on earth if we are to retain our respect and prestige,” Barry Goldwater announced. Retaliatory strikes, Goldwater maintained, are the “only thing [the president] can do under the circumstances.”6
President Johnson sent the Tonkin Gulf Resolution to the Senate on the morning of August 5. Fulbright met with Senate leadership and administration officials to plot a strategy for its swift passage, emphasizing the need for quick action and repeating the official administration position that “hostilities on a larger scale are not envisaged.” Staff who recalled “soul-searching” Senate debates over Eisenhower’s Middle East Resolution in 1957—a debate that lasted for 13 days—were incredulous at Fulbright’s determination to rush the resolution through the Senate, but the Arkansas senator proved persuasive. As one historian later assessed, “The administration had skillfully cultivated a crisis atmosphere that seemed to leave little room for debate.”7
On August 6, the Foreign Relations Committee chairman convened a joint executive session with the Armed Services Committee. During that session, which lasted a little more than an hour-and-a-half, senators posed few substantive questions of the witnesses representing the administration, including Secretary of Defense Robert McNamara and Secretary of State Dean Rusk. “As much as I would like to be consulted with on this kind of thing,” Senator Russell Long of Louisiana told the president’s advisors, “the less time you spend on consulting and the quicker you shoot back the better off you are.” Senator Wayne Morse of Oregon was the exception, challenging the administration’s claim that the attacks had been unprovoked. Tipped off by a Pentagon officer, Morse inquired if North Vietnam might have interpreted recent joint United States-South Vietnam covert operations as provocations. Secretary of Defense McNamara said no. The committee voted 14-1—Morse provided the dissenting vote—to send the resolution to the full Senate for its consideration.8
A few hours after the committee vote, Fulbright stood at his desk in the Senate Chamber and urged “the prompt and overwhelming endorsement of the resolution now before the Senate.” He had secured a unanimous consent agreement to limit the debate over the resolution to three hours, beginning that afternoon and continuing into the following morning. A final vote was scheduled for 1:00 p.m. on August 7. Despite the grave implications of the resolution, the debate was sparsely attended. A few senators expressed skepticism about the wisdom of granting the president such broad authority. Did the resolution authorize the president to “use such force as could lead into war” without a congressional declaration, John Sherman Cooper of Kentucky wondered? Yes, Fulbright conceded, the resolution did give the president such authority. “We all hope and believe that the President will not use this discretion arbitrarily or irresponsibly,” Fulbright explained. “We know that he is accustomed to consulting with the Joint Chiefs of Staff and with congressional leaders. But he does not have to do that.” The chairman reassured his colleagues, however, that the Johnson administration had denied any intent to widen the war, stating: “The policy of our Government not to expand the war still holds.”9
Chief opponent Wayne Morse was present for nearly all of the debate. He pleaded with his colleagues not to approve the resolution. “I shall not support … a predated declaration of war,” he insisted. But Fulbright’s foreign policy expertise and his close relationship with the president helped to assuage doubts about the wisdom of granting any president such sweeping authority. “When it came to foreign policy,” noted Senator Maurine Neuberger, Morse’s junior colleague from Oregon, “I did whatever Bill Fulbright said I should do.” At the conclusion of the debate, the Senate approved the resolution 88-2. Ernest Gruening of Alaska joined Morse in dissent. The House had already unanimously approved the joint resolution, and the president signed it into law on August 10, 1964.10
Fulbright had helped to deliver a major political and policy victory for his friend, President Johnson. In November, Johnson defeated Goldwater in an electoral landslide. In early 1965, under the provisions of the Tonkin Gulf Resolution, Johnson vastly expanded the war in Vietnam. He approved a bombing campaign in North Vietnam and ordered the first U.S. combat troops to South Vietnam. This betrayal of his stated intent stung some of the president’s friends in Congress, especially Fulbright. More than 150,000 U.S. combat troops entered South Vietnam by the end of 1965, and that number swelled to more than 530,000 by 1968.
Wayne Morse had predicted that his Senate colleagues would come to regret their support for the Tonkin Gulf Resolution. It wasn’t long before Fulbright did. Beginning in 1966, Fulbright’s Foreign Relations Committee held a series of high-profile educational hearings about the war. Broadcast live on national television, these hearings revealed the White House’s intentional deceptions about the war’s progress and widened what came to be known as the administration’s “credibility gap.”11
The hearings deepened Fulbright’s resolve to educate the public (and his colleagues) about the U.S. involvement in the Vietnam War. An ongoing committee investigation revealed that the administration’s justification for retaliatory action in 1964 and even the sequence of events that precipitated the request for the Tonkin Gulf Resolution were based on obfuscations and lies. The administration had drafted the resolution months before the reported attacks of August 1964, the hearings revealed, having it ready to present to Congress when the timing was right. Despite the fact the administration had insisted that the second unprovoked attack required forceful retaliation, there was doubt at the time that the attack had occurred. On the afternoon of August 4, for example, the commander of the USS Maddox—just hours after his initial report of the attack—cabled his superiors, “Review of action makes many reported contacts and torpedoes fired appear doubtful … Suggest complete evaluation before any further action.” The administration failed to share these doubts with members of Congress.12
In 1968, as the number of American casualties in Vietnam grew, Senator Fulbright expressed regret for his role in passing the resolution. “I feel a very deep moral responsibility to the Senate and the country for having misled them,” he lamented. Fulbright devoted the remainder of his Senate career to reclaiming Congress’s constitutional war-making powers and ending the war in Vietnam.13
In 1971 Congress rescinded the Tonkin Gulf Resolution, though it continued to fund the war until the U.S. military withdrew from Vietnam in March 1973. Later that year, Congress approved the War Powers Act over President Richard M. Nixon’s veto. The law represented Congress’s desire to define the circumstances under which presidents may unilaterally commit U.S. armed forces. Congress had granted the executive branch discretionary war-making power with the Tonkin Gulf Resolution, and some had learned a powerful lesson in that experience. “If we could rely on the good faith of the Executive,” Fulbright explained during a Senate debate of the war powers bill in July 1973, “we would not need the bill. However, since we cannot do so, so we do need a bill.” The War Powers Act requires the executive branch to consult with and report to Congress any commitment of armed forces.14
Despite his achievements, Fulbright lost his bid for reelection in a 1974 primary. The War Powers Act continues to serve mainly as a framework to promote legislative and executive branch cooperation on war powers issues. Its efficacy, however, depends upon Congress’s willingness to enforce the law. Since the 1950s, Congress has authorized presidential administrations to use military force by congressional resolutions rather than by declarations of war.
Notes
1. Senate Committee on Foreign Relations and Senate Committee on Armed Forces, Southeast Asia Resolution, Joint Hearing Before the Committee on Foreign Relations and the Committee on Armed Services, 88th Cong., 2nd sess., August 6, 1964, 8.
2. Randall Bennett Woods, Fulbright: A Biography (London: Cambridge University Press, 1995), 349–50; Joint Resolution to promote the maintenance of international peace and security in southeast Asia, Public Law 88-408, 88th Cong., 2nd sess., August 7, 1965, 59 Stat. 1031; President Lyndon B. Johnson, “August 4, 1964: Report on the Gulf of Tonkin Incident,” Presidential Speeches, Lyndon B. Johnson Presidency, Miller Center at the University of Virginia, transcript and recording accessed June 2, 2023, https://millercenter.org/the-presidency/presidential-speeches/august-4-1964-report-gulf-tonkin-incident; Louis Fisher, Constitutional Conflicts Between Congress and the President, 4th ed. (Lawrence: University Press of Kansas, 1997), 278–79.
3. Woods, Fulbright, 221; Congressional Record, 84th Cong., 1st sess., January 28, 1955, 994; Congressional Record, 85th Cong., 1st sess., March 5, 1957, 3129; Fisher, Constitutional Conflicts, 278, 281.
4. Woods, Fulbright, 215, 353.
5. Woods, Fulbright, 348; Frederik Logevall, Choosing War: The Lost Chance for Peace and the Escalation of War in Vietnam (Berkeley: University of California Press, 1999), 205.
6. Congressional Record, 88th Cong., 2nd sess., August 5, 1964, 18084; “A Nation United,” Philadelphia Inquirer, August 6, 1964, reprinted in the Congressional Record, 88th Cong., 2nd sess., August 6, 1964, 18400; Woods, Fulbright, 354; “Times Editorials: U.S. Answer to Aggression,” Los Angeles Times, August 6, 1964, A4; Charles Mohr, “Goldwater Backs Vietnam Action by Johnson,” New York Times, August 5, 1964, 4.
7. "Pat M. Holt, Chief of Staff, Foreign Relations Committee," Oral History Interviews, September 9, to December 12, 1980, Senate Historical Office, Washington, D.C., 178; Logevall, Choosing War, 205; Woods, Fulbright, 347, 353.
8. Committees on Foreign Relations and Armed Services, Southeast Asia Resolution, 14, 18.
9. Ezra Y. Siff, Why the Senate Slept: The Gulf of Tonkin Resolution and the Beginning of America’s Vietnam War (Westport, CT: Praeger, 1999), 27; Congressional Record, 88th Cong., 2nd sess., August 6, 1964, 18399, 18402, 18409-10.
10. Congressional Record, 88th Cong., 2nd sess., August 5, 1964, 18139; Mason Drukman, Wayne Morse: A Political Biography (Portland: The Oregon Historical Society Press, 1997), 413.
11. Drukman, Wayne Morse, 413; Joseph A. Fry, Debating Vietnam: Fulbright, Stennis and Their Senate Hearings (Lanham, MD: Rowman and Littlefield, 2006).
12. Woods, Fulbright, 350–51; Senate Committee on Foreign Relations, Executive Sessions of the Senate Foreign Relations Committee (Historical Series), Vol. XX, 90th Cong., 2nd sess., 1968 (Washington, D.C.: Government Printing Office, 2010), 281–86.
13. Senate Committee on Foreign Relations, Executive Sessions of the Senate Foreign Relations Committee (Historical Series), Vol. XX, 90th Cong., 2nd sess., 1968 (Washington, D.C.: Government Printing Office, 2010), 305-306.
14. Fisher, Constitutional Conflicts, 281–87; Logevall, Choosing War, 202–5, 213; Woods, Fulbright: 340–59, 415–67; Congressional Record, 93rd Cong., 1st sess., July 20, 1973, 25088.
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 | 202304 04Treasures from the Senate Archives: Legislative-Executive Relations
April 04, 2023
Each year, during the first week of April, the Senate commemorates “Congress Week.” Tied to the date when the Senate established a quorum for the first time—April 6, 1789—Congress Week is an annual reminder of the importance of saving and preserving the records of Congress, including the selection of historic records featured in this month’s “Senate Stories,” which highlight the complex relationship between the Senate and the president.
Each year, during the first week of April, the Senate commemorates “Congress Week.” Tied to the date when the Senate established a quorum for the first time—April 6, 1789—Congress Week is an annual reminder of the importance of saving and preserving the records of Congress, including the selection of historic records featured in this month’s “Senate Stories,” which highlight the complex relationship between the Senate and the president.
Among the foundational principles of the U.S. Constitution is the separation of powers. In establishing three distinct branches of government—legislative, executive, and judicial—the Constitution divides authority to create the law, implement and enforce the law, and interpret the law. At the same time, many powers exercised by one branch may be shared with another. This system of checks and balances invites both compromise and conflict among the branches, especially between the legislative and executive, and prevents the consolidation of power in any single branch. For example, the Senate’s “advice and consent” is required for executive functions such as nominations and treaties. Conversely, the president has the power to veto legislation; however, Congress may overturn the veto with a two-thirds majority of those present and voting in both houses.1
The constitutional structure that provides for checks and balances is expansive and complex by design, generating an interdependence between the Senate and the executive branch that, combined with transient political interests, has historically demonstrated moments of high conflict as well as examples of great cooperation. This collection of historic documents from the Senate’s archives highlights the collaborations and the struggles that have defined the relationship between the Senate and the president. Each document, while capturing a specific moment in time with unique political conditions at play, also provides a broader view of the constitutional system of government in action, specifically the foundational principle of separation of powers and the complex system of checks and balances.
George Washington's First Inaugural Address, 1789
When George Washington was sworn in as the first president of the United States on April 30, 1789, he delivered this address to a joint session of Congress, assembled in the Senate Chamber in New York City’s Federal Hall. While this first occasion was not the public event we have come to expect, Washington's speech nevertheless established the enduring tradition of presidential inaugural addresses. Early presidential messages, including inaugural addresses and annual messages (now known as State of the Union addresses), are included in Senate records at the National Archives.
Although noting his constitutional directive as president "to recommend to your consideration such measures as he shall judge necessary and expedient," Washington refrained from detailing his policy preferences regarding legislation. Rather, on the occasion of his inaugural, he stated his confidence in the abilities of the legislators, insisting, "It will be…far more congenial with the feelings which actuate me, to substitute, in place of a recommendation of particular measures, the tribute that is due to the talents, the rectitude, and the patriotism which adorn the characters selected to devise and adopt them."
Message from President Thomas Jefferson to Congress Regarding the Louisiana Purchase, 1804
Treaty powers are among those shared by the president and the Senate. The Constitution provides that the president "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur" (Article II, section 2). In 1803 President Thomas Jefferson's administration negotiated a treaty with France by which the United States purchased the vast Louisiana Territory. Questions arose concerning the constitutionality of the purchase, but Jefferson and his supporters successfully justified the legality of the acquisition. On October 20, 1803, the Senate approved the treaty for ratification by a vote of 24 to 7. The territory, which encompassed more than 800,000 square miles of land, now makes up 15 states stretching from Louisiana to Montana. In this congratulatory message to Congress dated January 16, 1804, President Jefferson reported on the formal transfer of the land to the United States and referenced the December 20, 1803, proclamation announcing to the residents of the territory the transfer of national authority.
Page from the Senate Journal Showing the Expungement of a Resolution to Censure President Andrew Jackson, 1834
The March 28, 1834, censure of President Andrew Jackson represents a notably contentious episode in the executive-legislative relationship. For two years, Democratic president Andrew Jackson had clashed with Senator Henry Clay and his allies over the congressionally chartered Bank of the United States. The dispute came to a head when President Jackson, who had opposed the creation of the Bank, ordered the removal of federal deposits from the Bank to be distributed to several state banks. When his first Treasury secretary refused to do so, Jackson fired him during a Senate recess and appointed a new Treasury secretary, who carried out his orders. Senator Clay and his allies, who supported the Bank, believed that President Jackson did not have the constitutional authority to take such action, and they found the explanation given for moving the federal deposits “unsatisfactory and insufficient.” Clay introduced the resolution to censure the president, charging that Jackson had “assumed the exercise of a power over the Treasury of the United States not granted him by the Constitution and laws.” After extensive debate, the censure resolution passed. Jackson responded by submitting to the Senate a 100-page message arguing that the Senate did not have the authority to censure the president. The Senate again rebuffed the president by refusing to print the lengthy message in its Journal.2
Over the next three years, Missouri Democrat and Jackson ally Thomas Hart Benton campaigned to expunge the censure resolution from the Senate Journal. In January 1837, after Democrats regained the majority in the Senate, Senator Benton succeeded. On January 16, the secretary of the Senate carried the 1834 Journal into the Senate Chamber, drew careful lines around the text of the censure resolution, and wrote, “Expunged by order of the Senate."
President Abraham Lincoln's Nomination of Ulysses S. Grant to be Lieutenant General of the U.S. Army, 1864
Like treaty powers, the Constitution requires that the Senate serve as a check on the president's nomination authority. The president nominates federal judges, members of the cabinet, and military officials, among others, whose nominations are confirmed with the advice and consent of the Senate. This remarkable document dated February 29, 1864, representing a critical moment in the Civil War, is President Abraham Lincoln's nomination of Ulysses S. Grant to be lieutenant general of the U.S. Army, at the time the United States’ highest military rank. Previously, only two men had achieved that rank—George Washington and Winfield Scott—and Scott’s had been a brevet promotion. To facilitate Grant’s nomination and ensure his superior status among military officers, Congress passed a bill to revive the grade of lieutenant general and authorize the president "to appoint, by and with the advice and consent of the Senate, a lieutenant-general, to be selected among those officers in the military service of the United States . . . most distinguished for courage, skill, and ability." The Senate confirmed Lincoln's nomination of Grant on March 2, 1864.
Letter from President Woodrow Wilson to Senator Henry Cabot Lodge, 1919
A unique event in legislative-executive relations occurred on August 19, 1919, when President Woodrow Wilson offered testimony before the Senate Committee on Foreign Relations on the Treaty of Versailles, then under consideration by the committee. The meeting, convened in the East Room of the White House, stood “in contradiction of the precedents of more than a century,” the Atlanta Constitution reported, noting the rarity of a president offering testimony before a congressional committee.3
The Treaty of Versailles ended military actions against Germany in World War I and created the League of Nations, an international organization designed to prevent another world war. President Wilson had led the U.S. delegation to the Paris Peace Conference in 1919 and had been a principal architect of the treaty. For months, Senate Foreign Relations Committee chairman Henry Cabot Lodge had encouraged the president to seek the advice of the Senate while negotiating the treaty’s terms, but Wilson chose to negotiate on his own. Personally invested in the treaty’s adoption, the president hand-delivered it to the Senate on July 10, 1919, and urged its approval for ratification in an unusual speech before the full Senate.
Under Senate rules, the treaty went to the Foreign Relations Committee for consideration, which held public hearings from July 31 to September 12, 1919. Among the most vocal critics of the proposed treaty was Lodge, who was also the Senate majority leader. Lodge opposed several elements of the treaty, particularly those related to U.S. participation in the League of Nations. On behalf of the Foreign Relations Committee, Lodge asked Wilson to meet with the committee to answer senators’ questions. With this letter, President Wilson agreed to Lodge's request and proposed the August 19 date at the White House.
Ultimately, Lodge’s committee insisted on a number of “reservations” to the treaty, but Wilson and Senate proponents of the treaty were unwilling to compromise on terms. Consequently, on November 19, 1919, for the first time in its history, the Senate rejected a peace treaty.
Attempted Override of President Richard Nixon's Veto of S. 518, 1973
Under the Constitution, the president is permitted to veto legislative acts, but Congress has the authority to override presidential vetoes by two-thirds majorities of both houses. This document provides a comprehensive example of these constitutional checks and balances in action. In 1973 Congress passed S.518, which sought to abolish the offices of the director and deputy director of the Office of Management and Budget and reestablish those positions with a new requirement that they be confirmed by the U.S. Senate. The bill’s proponents argued that because these positions had evolved to wield significant power, they ought to be subject to Senate confirmation.
President Richard Nixon vetoed the bill on May 18, claiming it to be unconstitutional. “This step would be a grave violation of the fundamental doctrine of separation of powers,” Nixon stated. While the Senate achieved the necessary two-thirds majority to override the veto, the House did not, and Nixon’s veto was sustained. Congressional efforts to override Nixon’s veto were recorded by the secretary of the Senate and clerk of the House of Representatives on the reverse side of the bill.
The system of checks and balances set forth by the Constitution is a complex one, creating a legislative-executive relationship that is sometimes adversarial and at other times cooperative, but always interdependent. Illustrating the Senate's broad-ranging responsibilities and the integral role the Senate has played in this constitutional system, these treasured documents from the Senate’s archives help us to gain a better understanding of the conflicts and compromises that have historically defined the relationship between the Senate and the president.
Notes
1. Matthew E. Glassman, "Separation of Powers: An Overview," Congressional Research Service, R44334, updated January 8, 2016, 2.
2. Senate Journal, 25th Cong., 2nd sess., March 28, 1834, 197.
3. “Wilson Meets Senators in Wordy Duel,” Atlanta Constitution, August 20, 1919, 1.
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 | 202209 17Constitution Day 2022: Treatymaking Power and George Washington's Visit to the Senate
September 17, 2022
The Constitution states that the president "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." This defines how consent is given but does not explain how the Senate offers its advice. Many framers envisioned the Senate as an executive council that would discuss a treaty with the president as it was being negotiated. When President George Washington visited the Senate for that purpose in 1789, however, it became clear that the framers’ view might not prevail.
Constitutional Foundations of Treatymaking
When the framers of the Constitution considered the question of treatymaking at the Federal Convention held in Philadelphia in 1787, they originally proposed giving the Senate the sole power to make treaties. As the debate ensued, however, objections arose to depositing the full scope of this complex diplomatic power within the legislative branch. Ultimately, the framers decided that treatymaking would be a concurrent power, shared by the executive and the legislative branches. Article II, section 2 of the Constitution states that the president "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur."
In this shared responsibility, the Senate would check presidential power, give the president the benefit of its advice and counsel, and safeguard the sovereignty of the states by providing each state with an equal vote in the treatymaking process. The president would represent the national interest in treatymaking and allow for unity and efficiency. As Alexander Hamilton explained in Federalist, No. 75, the treatymaking power “seems…to form a distinct department, and to belong properly neither to the legislative nor to the executive. The qualities elsewhere detailed, as indispensable in the management of foreign negotiations, point out the executive as the most fit agent in those transactions; while the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a part of the legislative body in the office of making them.”1
While the Constitution defines the manner in which consent is given by stipulating that two-thirds of senators present must agree to a treaty, it does not explain how the Senate should offer its advice. “This bare grant tells us…merely that they were the joint possessors of this great power,” one scholar noted. The Constitution’s “elasticity in details…left to successive Senates and to successive presidents the problem and the privilege of determining under the stress of actual government the precise manner in which they were to make the treaties of the nation.”2
The Senate as Executive Council
Many of the framers of the Constitution expected that the Senate would meet with the president in the manner of an executive council to confer about the details of a treaty as it was being negotiated. When the Senate began to consider treaties in 1789, however, it soon became clear that the framers’ view might not prevail. A formative event took place on Saturday, August 22, 1789, at New York City’s Federal Hall when President George Washington and Secretary of War Henry Knox visited senators in their Chamber “to advise with them on the terms of the Treaty to be negotiated with the Southern Indians.”3
Senators of the First Congress and President Washington were well aware that every action they took established precedents, and they often showed great thoughtfulness and foresight in their proceedings. Such was the case with the question of handling communications between senators and the president regarding the Senate’s advice and consent powers. Specifically, should that communication be in writing or in person? It was actually the first Senate rejection of a presidential nomination (also requiring the Senate's advice and consent) that precipitated a careful discussion about the form of communication with the president. On August 5, 1789, the day the nominee was rejected, a motion had been made that the Senate’s “advice and consent to the appointment of officers should be given in the presence of the President.” The Senate then appointed a committee of three to confer with President Washington “on the mode of communication proper to be pursued between him and the Senate, in the formation of treaties, and making appointments to offices.”4
The committee met with the president twice, on August 8 and August 10. “In all matters respecting Treaties,” Washington asserted in the first meeting, “oral communications seem indispensably necessary—because in these a variety of matters are contained, all of which not only require consideration, but some of them may undergo much discussion—to do which by written communications would be tedious without being satisfactory.” Given the necessity of an in-person meeting, Washington then posed several questions as to where such meetings should take place and what protocol should be followed. “If in the Senate Chamber,” for example, “how are the President and Vice President to be arranged?”5
Washington made additional assertions in the second meeting on August 10. In exercising its powers of advice and consent, Washington noted, the Senate “is evidently a Council only to the President”; therefore, “not only the time but the place and manner of consultation should be with the President.” He made an important distinction between the consideration of nominations and treaties, however, stating that treaties were “perhaps as much of a legislative nature” as executive, and so there would be occasions when the president should visit the Senate Chamber in person to make his propositions regarding the terms of a treaty. “The inclination or ideas of different Presidents may be different,” Washington predicted, suggesting the Senate needed to be flexible in the process by which it provides its advice and consent.6
In its report, the Senate committee agreed with the president. Like Washington, the committee also predicted “that the opinions both of the President and the Senate as to the proper manner may be changed by experience.” The committee’s resolution, adopted by the Senate on August 21, 1789, provided for the president to meet with the Senate in its Chamber. On the same day this resolution was adopted, Tobias Lear, President Washington’s secretary, delivered a message stating the president would meet with senators the following day “to advise with them on the terms of the Treaty to be negotiated with the Southern Indians.”7
President Washington Visits the Senate
When President Washington and Secretary Knox arrived in the Senate Chamber on Saturday, August 22, they presented the Senate with a series of questions related to upcoming treaty negotiations. The official record of this proceeding, included in the Senate Executive Journal, offers little insight into what happened in the Chamber that day, merely summarizing the issues and listing seven questions regarding instructions to the commissioners who would negotiate the treaty. According to the Executive Journal, the first question was postponed and the second was answered in the negative. Secretary of the Senate Samuel Otis recorded in his journal that a motion was made to refer the remaining questions to a committee, but Washington thought it improper, and the motion was rejected. The Executive Journal indicated that the Senate ultimately postponed consideration of the remaining questions until the following Monday.8
The only other contemporary account of Washington’s visit to the Chamber that day comes from the diary of William Maclay, a Pennsylvania senator who was a frequent critic of the president. Maclay stated that the meeting was awkward and tense. He noted that the reading of the president’s treaty propositions was drowned out by the noise of Manhattan traffic, making it difficult for senators to grasp the details. “Carriages were driving past and such a Noise, I could tell it was something about Indians, but was not master of one Sentence of it,” he complained.
When the president’s first question, regarding relations with the Cherokees, was put before the Senate, “There was a dead pause,” Maclay noted. “Mr. Morris whispered (to) me, we will see who will venture to break silence first.” Maclay continued, “I rose reluctantly indeed…, it appeared to me, that if I did not, no other one would. And we should have these advices and consents ravish’d in a degree from Us.” Maclay called for the reading of related treaties and other documents, arguing that the Senate had a duty to be fully informed on the subject. Casting his eye on Washington, the Pennsylvania senator noted the president “wore an aspect of Stern displeasure.” As the discussion continued, Maclay concluded that “there appeared an evident reluctance to proceed.” He suggested to Pennsylvania’s Robert Morris that the issues be referred to a committee. “My reasons,” he wrote, “were that I saw no chance of a fair investigation of subjects while the President of the U.S. sat there with his Secretary of War, to support his Opinions and over awe the timid and neutral part of the Senate.”
When Morris moved to have the matter referred to a committee of five, some senators “grumbled some objections,” with South Carolina’s Pierce Butler arguing that the Senate was sitting as a council and that “no council ever committed anything.” Maclay then gave a speech in support of a committee. (“I thought I did the subject justice,” he added in his diary.) As he sat down, Maclay recorded, Washington “started up in a violent fret,” exclaiming, “‘This defeats every purpose of my coming here!’” According to Maclay, Washington “soon cooled, however, by degrees,” and while he objected to the referral to committee, he indicated that he would accept a postponement until Monday. After the motion for a committee was withdrawn and the Senate agreed to postpone, Maclay wrote, the president withdrew “with a discontented Air” and a “sullen dignity.”
Maclay, a vocal opponent of the growth of centralized government power, interpreted the encounter as a contest over the Senate’s equal power in treatymaking. “I cannot now be mistaken,” he wrote in his diary, “the President wishes to tread on the Necks of the Senate…he wishes Us to see with the Eyes and hear with the ears of his Secretary only…And to bear down our deliberations with his personal Authority and Presence.” If the Senate did not take its own counsel and study before offering its advice, Maclay worried, it would contribute little to the treatymaking process and surrender its vital constitutional role. “Form only will be left for Us,” he lamented. “This will not do with Americans.” Maclay was disappointed that a committee was not appointed to consider the issues at hand, but the agreement to postpone offered the Senate the opportunity to study and debate the issues before providing its decision.
Washington returned to the Senate Chamber on Monday and, according to Maclay, “wore a different aspect from what he did Saturday. He was placid and Serene and manifested a Spirit of Accommodation.” The president watched as the Senate proceeded with its “tedious debate” of the remaining questions.9
Washington never again returned to the Senate in person to ask its advice and consent. From then on, he would communicate with the Senate only in writing. Despite the concerns that Maclay confided to his diary, there is little evidence to suggest that Washington intended to intimidate the Senate with his presence or to pressure senators into adopting a particular set of negotiating goals or instructions. Nevertheless, the unwieldy process of Senate deliberation, and perhaps senators’ insistence on studying the issues independently, seems to have discouraged the president from returning to the Chamber. He chose afterwards not to meet with the Senate as an “executive council” as had been envisioned. In the years that followed, Washington’s administration kept the Senate abreast of information related to the formation of treaties, but the president did not consult the full Senate in detail on treaty negotiations, although he did at times consult key groups of senators. When Washington pursued the most contested treaty of his administration, the Jay Treaty with Britain, he worked with a select group of supportive senators to determine the goals of the agreement and secure its approval in the Senate.10
It would be up to future presidents and senators to continue to shape the practice by which the Senate fulfills its constitutional duty of advice and consent. Some presidents have sought advice from the Senate on particular treaties, and a number of presidents have named individual senators to negotiating teams to help build support among their colleagues for the administration’s proposals. For the most part, however, senators have been left to assert their influence in the treatymaking process after a president submits a treaty for their approval. Presidents continue to conduct treaty business with the Senate in writing, although Woodrow Wilson broke with precedent in 1919. He presented the Treaty of Versailles—the peace agreement following World War I that he had personally helped to negotiate—to senators in the Chamber and urged its approval. While the Senate has approved the vast majority of treaties submitted, it has also required amendments and reservations to win that approval and has rejected or failed to act on treaties that did not garner enough support.
The Constitution established the framework of a new federal government, but it was not long before elected officials were confronted with difficult choices about how to exercise the powers it designated, especially when, as in treatymaking, those powers were shared between branches. The August 22 encounter between President George Washington and the Senate during the First Congress became an early milestone in the evolution of those shared powers. As the Senate’s committee report noted, the manner in which the Senate and the executive would put the Constitution’s treatymaking powers into operation would inevitably "be changed by experience."11
Notes
1. Senate Committee on Foreign Relations, Treaties and Other International Agreements: The Role of the United States Senate; A Study Prepared for the Committee on Foreign Relations, United States Senate, by the Congressional Research Service, Library of Congress, 106th Cong., 2nd sess., January 2001, S. Prt. 106-71, 2, 28; Alexander Hamilton, “The Federalist No. 75, [26 March 1788],” Founders Online, accessed August 31, 2022, https://founders.archives.gov/documents/Hamilton/01-04-02-0227. [Original source: The Papers of Alexander Hamilton, vol. 4, January 1787–May 1788, ed. Harold C. Syrett (New York: Columbia University Press, 1962), 628–33.]
2. Ralston Hayden, The Senate and Treaties, 1789–1817: The Development of the Treaty-Making Functions of the United States Senate During Their Formative Period (New York: Macmillan, 1920), 2.
3. Senate Committee on Foreign Relations, Treaties and Other International Agreements, 2, 27; Message of President George Washington Requesting that the Senate Meet to Advise Him on the Terms of the Treaty to Be Negotiated with the Southern Indians, August 21, 1789, Anson McCook Collection of Presidential Signatures, 1789–1975, Record Group 46, Records of the U.S. Senate, National Archives and Records Administration, Washington, D.C.
4. Senate Executive Journal, 1st Cong., 1st sess., August 5–6, 1789, 16.
5. George Washington to Senate, August 8, 1789, George Washington Papers, Series 2, Letterbooks 1754–1799: Letterbook 25, April 6, 1789–March 4, 1791, Manuscript Division, Library of Congress, accessed August 31, 2022, https://www.loc.gov/resource/mgw2.025/?sp=73&st=text.
6. George Washington to Senate, August 10, 1789, George Washington Papers, Series 2, Letterbooks 1754–1799: Letterbook 25, April 6, 1789–March 4, 1791, Manuscript Division, Library of Congress, accessed August 31, 2022, https://www.loc.gov/resource/mgw2.025/?sp=75&st=text.
7. Report of the Committee Appointed to Confer with the President on the Mode of Communication Proper to be Pursued Between Him and the Senate in the Formation of Treaties and Making Appointments to Offices, August 20, 1789, (SEN 1A-D1) Record Group 46, Records of the U.S. Senate, National Archives and Records Administration, Washington, D.C.; Senate Executive Journal, 1st Cong., 1st sess., August 21, 1789, 19; Message of President George Washington Requesting that the Senate Meet to Advise Him on the Terms of the Treaty to Be Negotiated with the Southern Indians, August 21, 1789.
8. Senate Executive Journal, 1st Cong., 1st sess., August 22, 1789, 19–23; Secretary of the Senate Journal on President George Washington's Visit to the Senate Regarding the Treaty with the Southern Indians, August 22, 1789, Record Group 46, Records of the U.S. Senate, National Archives and Records Administration, Washington, D.C.
9. Edgar S. Maclay, ed., Journal of William Maclay, United States Senator from Pennsylvania, 1789–1791 (New York: D.A. Appleton and Company, 1890), 128–33, accessed February 28, 2024, https://www.loc.gov/collections/century-of-lawmaking/articles-and-essays/journals-of-congress/maclays-journal/.
10. Hayden, The Senate and Treaties, 103–6.
11. Report of the Committee Appointed to Confer with the President, August 20, 1789.
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