How George Washington Shaped Presidential Power and Foreign Policy

George Washington's presidency was instrumental in shaping the basic contours of executive power in America, particularly in areas where the constitutional text is ambiguous or "cryptic." His actions and the precedents he set often resolved these ambiguities, establishing practices that continue to define the presidency today.

Recognizing Foreign Regimes

The Constitution is not explicit about who holds the power to recognize foreign regimes. While presidents can argue that their continuous presence (24/7, 365 days a year) makes them best suited to address sudden changes in foreign governments, the decisive factor in establishing this presidential power was Washington's early action. He recognized the French revolutionaries, and crucially, the other branches of government accepted his decision without significant pushback. This established a precedent that presidents have the authority to recognize foreign governments.

Foreign Envoys and Treaties

Similarly, the Constitution is unclear about the extent to which presidents must inform the Senate in advance of sending foreign envoys or negotiating treaties. While one could argue that the Senate, needing to approve treaties, should be privy to all negotiating strategies, the text does not explicitly state this. Furthermore, sensitive negotiations might require secrecy, and the Senate, as a larger body, could be seen as more prone to leaks than a unitary executive.

Washington again set the precedent by engaging in secret envoys and negotiations, presenting the results to the Senate for approval only when ready. The other branches acquiesced to this practice, solidifying the president's role in conducting foreign policy negotiations with a degree of independence.

The Neutrality Proclamation

Washington's famous Neutrality Proclamation, issued during the war between revolutionary France and Britain, further solidified the president's role as the primary communicator of American foreign policy. Despite a treaty obligation to support France, Washington interpreted the treaty as not requiring the U.S. to join the war, prioritizing national interest. He proclaimed America's neutrality, a move that established the president's authority to declare foreign policy, even though the Constitution doesn't explicitly grant this power in so many words. This understanding of the president as the "organ of communication" with foreign heads of state is a direct result of Washington's actions.

Where Washington Overstepped: Criminal Law

However, Washington did overstep his authority in one aspect of the Neutrality Proclamation. He suggested that any American aiding either the French or the British would be subject to federal criminal prosecution simply because he, as president, declared it. This was a clear overreach because the Constitution explicitly grants Congress, not the president, the power to create criminal law. Congress must pass statutes, define offenses, and prescribe punishments. The Supreme Court later clarified this in cases like Hudson and Goodwin, affirming that the president cannot unilaterally create federal criminal law. This demonstrates that presidential precedents prevail where the text is ambiguous, but yield when the text is clear.

The President's Cabinet and the Power of Removal

The Constitution outlines that heads of departments (cabinet secretaries) are nominated by the president and confirmed by the Senate. It also allows for temporary appointments during Senate recesses. However, the text is ambiguous regarding the president's power to fire these cabinet officers. One interpretation, even supported by Alexander Hamilton in Federalist No. 77, suggested that since the Senate must consent to an appointment, it should also consent to a removal.

Despite this, it is now universally accepted that presidents can fire cabinet officers at will. This clarity stems from a crucial precedent set by George Washington and the first Congress in 1789. In creating the first cabinet departments, Congress, with Washington's insistence, included language in the statutes conceding that cabinet officials serve "at the president's pleasure" and can be fired at will. Washington argued that these officials were his "helpers" and "lieutenants," essential for him to faithfully execute the laws, and he needed to have confidence in them. Alexander Hamilton, who had previously argued for Senate involvement in removals, changed his stance, acknowledging the president's unilateral power in this regard. This "decision of 1789" established the practice that has been followed ever since, even surviving challenges like Andrew Johnson's impeachment.

This power to appoint and remove cabinet members at will also explains why presidents tend to confide more in their cabinet than in the Senate. Unlike senators, cabinet members are handpicked by the president and can be dismissed if they fail to maintain trust or secrecy.

Washington's Inauguration and Unwritten Rules

Even before taking the oath of office, Washington began establishing precedents and unwritten rules. His first inaugural in 1789 showcased several such instances:

• Swearing on the Bible: Washington took his oath on a Bible, a practice not constitutionally required but one that many subsequent presidents have followed, establishing its permissibility as a personal religious choice.
• Civilian Supremacy: Washington appeared in civilian attire, not military uniform, despite his military background. This established a principle of civilian supremacy, influencing future presidents, including generals, to wear civilian clothes at their inaugurations.
• Presidential Etiquette: Washington initially attempted to regularly consult with the Senate in person, but this proved ineffective. His frustration led him to largely abandon direct, frequent appearances in the Senate, establishing the practice of presidents primarily consulting their cabinets rather than the legislative body for advice.

In essence, many of the practices and understandings of the American presidency are not explicitly written in the Constitution but are rather a product of George Washington's actions and the subsequent acceptance or rejection of those actions by the other branches of government and the American people. These "Washingtonian precedents" are particularly influential where the constitutional text is ambiguous, shaping the "unwritten constitution" of executive power.