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The Final Constitutional Options

by lchervinsky

Cite as: lchervinsky, ‘The Final Constitutional Options’ in Lindsay Chervinsky, Advising the President, Quill Project at Pembroke College (Oxford, 2016), item 89.

Content

After the delegates rejected all proposals for privy councils and executive councils, only two options remain in the Constitution for the President to obtain advice. Article II, Section 2 states that the President may request written advice from the secretaries on matters relating to their department. The delegates expected the secretaries to act as agency heads, similar to the department secretaries under the Articles of Confederation. The delegates hoped that by specifying that the advice must be made in writing, each secretary would take responsibility for his position and they would not form a secret cabal around the President.

The President can also consult with the Senate on foreign affairs. George Mason, one vocal proponent of a privy council, believed that the Senate would serve as a council for the executive. He voiced concerns that the demands of governing would force the Senate to remain in session year-round to advise for the President. George Washington's visit to the Senate on August 22, 1789 demonstrates that many of the delegates, as well as officials in the first administration, also expected the Senate to serve as a council on foreign affairs.

Once in office, Washington initially limited himself to these two options. He visited the Senate and requested written advice from the department secretaries. The complexity of the issues facing the administration soon proved that written advice was insufficient. Washington also concluded that the Senate could not provide the timely advice needed to conduct diplomacy. Washington gradually moved toward creating a cabinet and in April 1793 finally embraced the cabinet as a central part of the executive branch.

Approved for publication

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