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CRS Annotated Constitution

Article II -- Table of ContentsPrev | Next

The Removal Power

The Myers Case.—Save for the provision which it makes for a power of impeachment of “civil officers of the United States,” the Constitution contains no reference to a power to remove from office, and until its decision in Myers v. United States,513 on October 25, 1926, the Supreme Court had contrived to side–step every occasion[p.523]for a decisive pronouncement regarding the removal power, its extent, and location. The point immediately at issue in the Myers case was the effectiveness of an order of the Postmaster General, acting by direction of the President, to remove from office a first–class postmaster, in the face of the following provision of an act of Congress passed in 1876: “Postmasters of the first, second, and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate, and shall hold their offices for four years unless sooner removed or suspended according to law.”514

A divided Court, speaking through Chief Justice Taft, held the order of removal valid and the statutory provision just quoted void. The Chief Justice’s main reliance was on the so–called “decision of 1789,” the reference being to Congress’ course that year in inserting in the act establishing the Department of State a proviso which was meant to imply recognition that the Secretary would be removable by the President at will. The proviso was especially urged by Madison, who invoked in support of it the opening words of Article II and the President’s duty to “take care that the laws be faithfully executed.” Succeeding passages of the Chief Justice’s opinion erected on this basis a highly selective account of doctrine and practice regarding the removal power down to the Civil War, which was held to yield the following results: “That article II grants to the President the executive power of the Government, i.e., the general administrative control of those executing the laws, including the power of appointment and removal of executive officers—a conclusion confirmed by his obligation to take care that the laws be faithfully executed; that article II excludes the exercise of legislative power by Congress to provide for appointments and removals, except only as granted therein to Congress in the matter of inferior offices; that Congress is only given power to provide for appointments and removals of inferior officers after it has vested, and on condition that it does vest, their appointment in other authority than the President with the Senate’s consent; that the provisions of the second section of Article II, which blend action by the legislative branch, or by part of it, in the work of the executive, are limitations to be strictly construed and not to be extended by implication; that the President’s power of removal is further established as an incident to his specifically enumerated function of appointment by and with the advice of the Senate, but that such incident does not by implication extend to removals the Senate’s power of checking appointments; and finally that to hold otherwise would[p.524]make it impossible for the President, in case of political or other differences with the Senate or Congress, to take care that the laws be faithfully executed.”515

The holding in the Myers case boils down to the proposition that the Constitution endows the President with an illimitable power to remove all officers in whose appointment he has participated with the exception of judges of the United States. The motivation of the holding was not, it may be assumed, any ambition on the Chief Justice’s part to set history aright—or awry.516 Rather, it was the concern that he voiced in the following passage in his opinion: “There is nothing in the Constitution which permits a distinction between the removal of the head of a department or a bureau, when he discharges a political duty of the President or exercises his discretion, and the removal of executive officers engaged in the discharge of their other normal duties. The imperative reasons requiring an unrestricted power to remove the most important of his subordinates in their most important duties must, therefore, control the interpretation of the Constitution as to all appointed by him.”517 Thus spoke the former President Taft, and the result of[p.525]his prepossession was a rule which, as was immediately pointed out, exposed the so–called “independent agencies,” the Interstate Commerce Commission, the Federal Trade Commission, and the like, to presidential domination.Unfortunately, the Chief Justice, while professing to follow Madison’s leadership, had omitted to weigh properly the very important observation which the latter had made at the time regarding the office of Comptroller of the Treasury. “The Committee,” said Madison, “has gone through the bill without making any provision respecting the tenure by which the comptroller is to hold his office. I think it is a point worthy of consideration, and shall, therefore, submit a few observations upon it. It will be necessary to consider the nature of this office, to enable us to come to a right decision on the subject; in analyzing its properties, we shall easily discover they are of a judiciary quality as well as the executive; perhaps the latter obtains in the greatest degree. The principal duty seems to be deciding upon the lawfulness and justice of the claims and accounts subsisting between the United States and particular citizens: this partakes strongly of the judicial character, and there may be strong reasons why an officer of this kind should not hold his office at the pleasure of the executive branch of the government.”518 In Humphrey’s Executor v. United States,519 the Court seized upon “the nature of the office” concept and applied it as a corrective to the overbroad Myers holding.

The Humphrey Case.—The material element of this case was that Humphrey, a member of the Federal Trade Commission, was on October 7, 1933, notified by President Roosevelt that he was “removed” from office, the reason being their divergent views of public policy. In due course, Humphrey sued for salary. Distinguishing the Myers case, Justice Sutherland, speaking for the unanimous Court, said: “A postmaster is an executive officer restricted to the performance of executive functions. He is charged with no duty at all related to either the legislative or judicial power. The actual decision in the Myers case finds support in the theory that such an office is merely one of the units in the executive department and, hence, inherently subject to the exclusive and illimitable power of[p.526]removal by the Chief Executive, whose subordinate and aide he is. . . . It goes no farther; much less does it include an officer who occupies no place in the executive department and who exercises no part of the executive power vested by the Constitution in the President.

“The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies embodied in the statute. . . . Such a body cannot in any proper sense be characterized as an arm or eye of the executive. Its duties are performed without executive leave and, in the contemplation of the statute, must be free from executive control. . . . We think it plain under the Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of those just named, [the Interstate Commerce Commission, the Federal Trade Commission, the Court of Claims]. The authority of Congress, in creating quasi–legislative or quasi–judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted; and that authority includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime. For it is quite evident that one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter’s will. . . .

“The result of what we now have said is this: Whether the power of the President to remove an officer shall prevail over the authority of Congress to condition the power by fixing a definite term and precluding a removal except for cause, will depend upon the character of the office; the Myers decision, affirming the power of the President alone to make the removal, is confined to purely executive officers; and as to officers of the kind here under consideration, we hold that no removal can be made during the prescribed term for which the officer is appointed, except for one or more of the causes named in the applicable statute.”520

The Wiener Case.—Curtailment of the President’s power of removal, so liberally delineated in the Myers decision, was not to[p.527]end with the Humphrey case. Unresolved by the latter was the question whether the President, absent a provision expressly delimiting his authority in the statute creating an agency endowed with quasi–judicial functions, remained competent to remove members serving thereon. To this query the Court supplied a negative answer in Wiener v. United States.521 Emphasizing therein that the duties of the War Claims Commission were wholly adjudicatory and its determinations, final and exempt from review by any other official or judicial body, the Court unanimously concluded that inasmuch as the President was unable to supervise its activities, he lacked the power, independently of statutory authorization, to remove a commissioner serving thereon whose term expired with the life of that agency.

The Watergate Controversy.—A dispute arose regarding the discharge of the Special Prosecutor appointed to investigate and prosecute violations of law in the Watergate matter. Congress vested in the Attorney General the power to conduct the criminal litigation of the Federal Government,522 and it further authorized him to appoint subordinate officers to assist him in the discharge of his duties.523 Pursuant to presidential direction, the Attorney General designated a Watergate Special Prosecutor with broad power to investigate and prosecute offenses arising out of the Watergate break–in, the 1972 presidential election, and allegations involving the President, members of the White House staff, or presidential appointees. He was to remain in office until a date mutually agreed upon between the Attorney General and himself, and the regulations provided that the Special Prosecutor “will not be removed from his duties except for extraordinary improprieties on his part.”524 On October 20, following the resignations of the Attorney General and the Deputy Attorney General, the Solicitor General as Acting Attorney General formally dismissed the Special Prosecutor525 and three days later rescinded the regulation establishing the office.526 In subsequent litigation, it was held, by a federal district court, that the firing by the Acting Attorney General had vio[p.528]lated the regulations, which were in force at the time and which had to be followed until they were rescinded.527 The Supreme Court in United States v. Nixon528 seemed to confirm this analysis by the district court in upholding the authority of the new Special Prosecutor to take the President to court to obtain evidence in the President’s possession. Left unsettled were two questions, the power of the President himself to go over the heads of his subordinates and to fire the Special Prosecutor himself, whatever the regulations said, and the power of Congress to enact legislation establishing an Office of Special Prosecutor free from direction and control of the President.529 When Congress acted to create an office, first called the Special Prosecutor and then the Independent Counsel, resolution of the question became necessary.


Footnotes

513 272 U.S. 52 (1926).
514 19 Stat. 78, 80 .
515 Id., 272 U.S., 163–164.
516 The reticence of the Constitution respecting removal left room for four possibilities: first, the one suggested by the common law doctrine of “estate in office,” from which the conclusion followed that the impeachment power was the only power of removal intended by the Constitution; second, that the power of removal was an incident of the power of appointment and hence belonged, at any rate in the absence of legal or other provision to the contrary, to the appointing authority; third, that Congress could, by virtue of its power “to make all laws which shall be necessary and proper,” etc., determine the location of the removal power; fourth, that the President by virtue of his “executive power” and his duty “to take care that the laws be faithfully executed,” possesses the power of removal over all officers of the United States except judges. In the course of the debate on the act to establish a Department of Foreign Affairs (later changed to Department of State) all of these views were put forward, with the final result that a clause was incorporated in the measure that implied, as pointed out above, that the head of the department would be removable by the President at his discretion. Contemporaneously, and indeed until after the Civil War, this action by Congress, in other words “the decision of 1789,” was interpreted as establishing “a practical construction of the Constitution” with respect to executive officers appointed without stated terms. However, in the dominant opinion of those best authorized to speak on the subject, the “correct interpretation” of the Constitution was that the power of removal was always an incident of the power of appointment, and that therefore in the case of officers appointed by the President with the advice and consent of the Senate the removal power was exercisable by the President only with the advice and consent of the Senate. For an extensive review of the issue at the time of Myers, see Corwin, The President’s Removal Power Under the Constitution, in 4 Selected Essays on Constitutional Law (Chicago: 1938), 1467.
517 Id., 272 U.S., 134. Note the parallelism of the arguments from separation–of–powers and the President’s ability to enforce the laws in the decision rendered on Congress’ effort to obtain a role in the actual appointment of executive officers in Buckley v. Valeo, 424 U.S. 1, 109–143 (1976), and in many of the subsequent separation–of– powers decisions.
518 Annals of Congress 611–612 (1789).
519 295 U.S. 602 (1935). The case is also styled Rathbun, Executor v. United States, Humphrey having, like Myers before him, died in the course of his suit for salary. Proponents of strong presidential powers long argued that Humphrey’s Executor, like A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), both cases argued and decided contemporaneously, reflected the anti–New Deal views of a conservative Court and wrongfully departed from Myers. See Scalia, Historical Anomalies in Administrative Law, 1985 Yearbook of the Supreme Court Historical Society 103, 106–110. Now–Justice Scalia continues to adhere to his views and to Myers. Morrison v. Olson, 487 U.S. 654, 697, 707–711, 723–727 (1988) (dissenting).
520 Id., 295 U.S., 627–629, 631–632. Justice Sutherland’s statement, quoted above, that a Federal Trade Commissioner “occupies no place in the executive department” was not necessary to the decision of the case, was altogether out of line with the same Justice’s reasoning in Springer v. Philippine Islands, 277 U.S. 189, 201–202 (1928), and seems later to have caused the author of it much perplexity. See R. Cushman, The Independent Regulatory Commission (New York: 1941), 447– 448. As Professor Cushman adds: “Every officer and agency created by Congress to carry laws into effect is an arm of Congress. . . . The term may be a synonym; it is not an argument.” Id., 451.
521 357 U.S. 349 (1958).
522 28 U.S.C. Sec. 516 .
523 28 U.S.C. §§ 509 , 510, 515, 533.
524 38 Reg.14688 (1973). The Special Prosecutor’s status and duties were the subject of negotiation between the Administration and the Senate Judiciary Committee. Nomination of Elliot L. Richardson to be Attorney General, Hearings before the Senate Judiciary Committee, 93d Congress, 1st sess. (1973), 143 passim.
525 The formal documents effectuating the result are set out in 9 Wkly. Comp. of Pres. Docs. 1271–1272 (1973).
526 38 Reg.29466 (1973). The Office was shortly recreated and a new Special Prosecutor appointed. 38 Fed. Reg. 30739, as amended by 38 Fed. Reg. 32805. See Nomination of William B. Saxbe to be Attorney General, Hearings before the Senate Judiciary Committee, 93d Congress, 1st sess. (1973).
527 Nader v. Bork, 366 F. Supp. 104 (D.D.C. 1973).
528 418 U.S. 683, 692–697 (1974).
529 The first question remained unstated, but the second issue was extensively debated in Special Prosecutor, Hearings before the Senate Judiciary Committee, 93d Congress, 1st sess. (1973); Special Prosecutor and Watergate Grand Jury Legislation, Hearings before the House Judiciary Subcommittee on Criminal Justice, 93d Congress, 1st sess. (1973).
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