|Myers v. United States
58 Ct.Cls. 199, affirmed.
[ Taft ]
[ Holmes ]
[ Mcreynolds ]
[ Brandeis ]
Myers v. United States
APPEAL FROM THE COURT OF CLAIMS
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
This case presents the question whether, under the Constitution, the President has the exclusive power of removing executive officers of the United States whom he has appointed by and with the advice and consent of the Senate.
Myers, appellant's intestate, was, on July 21, 1917, appointed by the President, by and with the advice and consent of the Senate, to be a postmaster of the first class at Portland, Oregon, for a term of four years. On January 20, 1920, Myers' resignation was demanded. He refused the demand. On February 2, 1920, he was removed from office by order of the Postmaster General, acting by direction of the President. February 10th, Myers sent a petition to the President and another to the Senate Committee on Post Offices, asking to be heard if any charges were filed. He protested to the Department against his removal, and continued to do so until the end of his term. He pursued no other occupation, and drew compensation for no other service during the interval. On April 21, 1921, he brought this suit in the Court of Claims for his salary from the date of his removal, which, as claimed by supplemental petition filed after July 21, 1921, the end of his term, amounted to $8,838.71. In August, 1920, the President made a recess appointment of one Jones, who took office September 19, 1920. [p107]
The Court of Claims gave judgment against Myers, and this is an appeal from that judgment. The Court held that he had lost his right of action because of his delay in suing, citing Arant v. Lane, 249 U.S. 367; Nicholas v. United States, 257 U.S. 71, and Norris v. United States, 257 U.S. 77. These cases show that, when a United States officer is dismissed, whether in disregard of the law or from mistake as to the facts of his case, he must promptly take effective action to assert his rights. But we do not find that Myers failed in this regard. He was constant in his efforts at reinstatement. A hearing before the Senate Committee could not be had till the notice of his removal was sent to the Senate or his successor was nominated. From the time of his removal until the end of his term, there were three sessions of the Senate without such notice or nomination. He put off bringing his suit until the expiration of the Sixty-sixth Congress, March 4, 1921. After that, and three months before his term expired, he filed his petition. Under these circumstances, we think his suit was not too late. Indeed, the Solicitor General, while not formally confessing error in this respect, conceded at the bar that no laches had been shown.
By the 6th section of the Act of Congress of July 12, 1876, 19 Stat. 80, 81, c. 179, under which Myers was appointed with the advice and consent of the Senate as a first-class postmaster, it is provided that
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.
The Senate did not consent to the President's removal of Myers during his term. If this statute, in its requirement that his term should be four years unless sooner removed by the President by and with the consent of the [p108] Senate, is valid, the appellant, Myers' administratrix, is entitled to recover his unpaid salary for his full term, and the judgment of the Court of Claims must be reversed. The Government maintains that the requirement is invalid for the reason that, under Article II of the Constitution the President's power of removal of executive officers appointed by him with the advice and consent of the Senate is full and complete without consent of the Senate. If this view is sound, the removal of Myers by the President without the Senate's consent was legal, and the judgment of the Court of Claims against the appellant was correct, and must be affirmed, though for a different reason from that given by that court. We are therefore confronted by the constitutional question, and cannot avoid it.
The relevant parts of Article II of the Constitution are as follows:
Section 1. The executive Power shall be vested in a President of the United States of America.
Section 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments upon any subject relating to the duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur, and he 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, and which shall be established [p109] by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate by granting Commissions which shall expire at the End of their next Session.
Section 3. He shall 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; he may, on extraordinary occasions, convene both Houses or either of them, and in case of disagreement between them with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
Section 4. The President, Vice President and all civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.
Section 1 of Article III, provides:
The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior Courts, shall hold their offices during good behavior. . . .
The question where the power of removal of executive officers appointed by the President by and with the advice and consent of the Senate was vested was presented early in the first session of the First Congress. There is no express provision respecting removals in the Constitution, except as Section 4 of Article II, above quoted, provides for removal from office by impeachment. The subject [p110] was not discussed in the Constitutional Convention. Under the Articles of Confederation, Congress was given the power of appointing certain executive officers of the Confederation, and, during the Revolution and while the Articles were given effect, Congress exercised the power of removal. May, 1776, 4 Journals of the Continental Congress, Library of Congress Ed., 361; August 1, 1777, 8 Journals, 596; January 7, 1779, 13 Journals, 32-33; June 1779, 14 Journals, 542, 712, 714; November 23, 1780, 18 Journals, 1085; December 1, 1780, 18 Journals, 1115.
Consideration of the executive power was initiated in the Constitutional Convention by the seventh resolution in the Virginia Plan, introduced by Edmund Randolph. 1 Farrand, Records of the Federal Convention, 21. It gave to the Executive "all the executive powers of the Congress under the Confederation," which would seem therefore to have intended to include the power of removal which had been exercised by that body as incident to the power of appointment. As modified by the Committee of the Whole, this resolution declared for a national executive of one person, to be elected by the legislature, with power to carry into execution the national laws and to appoint to offices in cases not otherwise provided for. It was referred to the Committee on Detail, 1 Farrand, 230, which recommended that the executive power should be vested in a single person, to be styled the President of the United States; that he should take care that the laws of the United States be duly and faithfully executed, and that he should commission all the officers of the United States and appoint officers in all cases not otherwise provided by the Constitution. 2 Farrand, 185. The committee further recommended that the Senate be given power to make treaties, and to appoint ambassadors and judges of the Supreme Court.
After the great compromises of the Convention -- the one giving the States equality of representation in the [p111] Senate, and the other placing the election of the President not in Congress, as once voted, but in an electoral college in which the influence of larger States in the selection would be more nearly in proportion to their population -- the smaller States, led by Roger Sherman, fearing that, under the second compromise, the President would constantly be chosen from one of the larger States, secured a change by which the appointment of all officers, which theretofore had been left to the President without restriction, was made subject to the Senate's advice and consent, and the making of treaties and the appointments of ambassadors, public ministers, consuls and judges of the Supreme Court were transferred to the President, but made subject to the advice and consent of the Senate. This third compromise was effected in a special committee in which Gouverneur Morris of Pennsylvania represented the larger States and Roger Sherman the smaller States. Although adopted finally without objection by any State in the last days of the Convention, members from the larger States, like Wilson and others, criticized this limitation of the President's power of appointment of executive officers and the resulting increase of the power of the Senate. 2 Farrand, 537, 538, 539.
In the House of Representatives of the First Congress, on Tuesday, May 18, 1789, Mr. Madison moved in the Committee of the Whole that there should be established three executive departments -- one of Foreign Affairs, another of the Treasury, and a third of War -- at the head of each of which there should be a Secretary, to be appointed by the President by and with the advice and consent of the Senate, and to be removable by the President. The committee agreed to the establishment of a Department of Foreign Affairs, but a discussion ensued as to making the Secretary removable by the President. 1 Annals of Congress, 370, 371.
The question was now taken and carried, by a considerable majority, in favor [p112] of declaring the power of removal to be in the President.
1 Annals of Congress, 383.
On June 16, 1789, the House resolved itself into a Committee of the Whole on a bill proposed by Mr. Madison for establishing an executive department to be denominated the Department of Foreign Affairs, in which the first clause, after stating the title of the. officer and describing his duties, had these words: "to be removable from office by the President of the United States." 1 Annals of Congress, 455. After a very full discussion, the question was put: shall the words "to be removable by the President " be struck out? It was determined in the negative yeas 20, nays 34. 1 Annals of Congress, 576.
On June 22, in the renewal of the discussion,
Mr. Benson moved to amend the bill by altering the second clause so as to imply the power of removal to be in the President alone. The clause enacted that there should be a chief clerk, to be appointed by the Secretary of Foreign Affairs, and employed as he thought proper, and who, in case of vacancy, should have the charge and custody of all records, books, and papers appertaining to the department. The amendment proposed that the chief clerk, "whenever the said principal officer shall be removed from office by the President of the United States, or in any other case of vacancy," should, during such vacancy, have the charge and custody of all records, books, and papers appertaining to the department.
1 Annals of Congress, 578.
Mr. Benson stated that his objection to the clause "to be removable by the President" arose from an idea that the power of removal by the President hereafter might appear to be exercised by virtue of a legislative grant only, and consequently be subjected to legislative instability, when he was well satisfied in his own mind that it was fixed by a fair legislative construction of the Constitution.
1 Annals of Congress, 579. [p113]
Mr. Benson declared, if he succeeded in this amendment, he would move to strike out the words in the first clause, "to be removable by the President" which appeared somewhat like a grant. Now, the mode he took would evade that point and establish a legislative construction of the Constitution. He also hoped his amendment would succeed in reconciling both sides of the House to the decision, and quieting the minds of gentlemen.
1 Annals of Congress, 578.
Mr. Madison admitted the objection made by the gentleman near him (Mr. Benson) to the words in the bill. He said:
They certainly may be construed to imply a legislative grant of the power. He wished everything like ambiguity expunged, and the sense of the House explicitly declared, and therefore seconded the motion. Gentlemen have all along proceeded on the idea that the Constitution vests the power in the President, and what arguments were brought forward respecting the convenience or inconvenience of such disposition of the power were intended only to throw light upon what was meant by the compilers of the Constitution. Now, as the words proposed by the gentleman from New York expressed to his mind the meaning of the Constitution, he should be in favor of them, and would agree to strike out those agreed to in the committee.
1 Annals of Congress, 578, 579.
Mr. Benson's first amendment to alter the second clause by the insertion of the italicized words, made that clause to read as follows:
That there shall be in the State Department an inferior officer to be appointed by the said principal officer, and to be employed therein as he shall deem proper, to be called the Chief Clerk in the Department of Foreign Affairs, and who, whenever the principal officer shall be removed from office by the President of the United States, or in any other case of vacancy, shall, during such vacancy, [p114] have charge and custody of all records, books and papers appertaining to said department.
The first amendment was then approved by a vote of thirty to eighteen. 1 Annals of Congress, 580. Mr. Benson then moved to strike out in the first clause the words "to be removable by the President," in pursuance of the purpose he had already declared, and this second motion of his was carried by a vote of thirty-one to nineteen. 1 Annals of Congress, 585.
The bill as amended was ordered to be engrossed, and read the third time the next day, June 24, 1789, and was then passed by a vote of twenty-nine to twenty-two, and the Clerk was directed to carry the bill to the Senate and desire their concurrence. 1 Annals of Congress, 591.
It is very clear from this history that the exact question which the House voted upon was whether it should recognize and declare the power of the President under the Constitution to remove the Secretary of Foreign Affairs without the advice and consent of the Senate. That was what the vote was taken for. Some effort has been made to question whether the decision carries the result claimed for it, but there is not the slightest doubt, after an examination of the record, that the vote was, and was intended to be, a legislative declaration that the power to remove officers appointed by the President and the Senate vested in the President alone, and, until the Johnson Impeachment trial in 1868, its meaning was not doubted even by those who questioned its soundness.
The discussion was a very full one. Fourteen out of the twenty-nine who voted for the passage of the bill, and eleven of the twenty-two who voted against the bill, took part in the discussion. Of the members of the House, eight had been in the Constitutional Convention, and, of these, six voted with the majority, and two, Roger Sherman and Eldridge Gerry, the latter of whom had refused to sign the Constitution, voted in the minority. After [p115] the bill as amended had passed the House, it was sent to the Senate, where it was discussed in secret session, without report. The critical vote there was upon the striking out of the clause recognizing and affirming the unrestricted power of the President to remove. The Senate divided by ten to ten, requiring the deciding vote of the Vice-President, John Adams, who voted against striking out, and in favor of the passage of the bill as it had left the House. [*] Ten of the Senators had been in the Constitutional Convention, and, of them, six voted that the power of removal was in the President alone. The bill, having passed as it came from the House, was signed by President Washington and became a law. Act of July 27, 1789, 1 Stat. 28, c. 4.
The bill was discussed in the House at length and with great ability. The report of it in the Annals of Congress is extended. James Madison was then a leader in the House, as he had been in the Convention. His arguments in support of the President's constitutional power of removal independently of Congressional provision, and without the consent of the Senate, were masterly, and he carried the House.
It is convenient in the course of our discussion of this case to review the reasons advanced by Mr. Madison and his associates for their conclusion, supplementing them, so far as may be, by additional considerations which lead this Court to concur therein.
First. Mr. Madison insisted that Article II, by vesting the executive power in the President, was intended to grant to him the power of appointment and removal of executive officers except as thereafter expressly provided in that Article. He pointed out that one of the chief [p116] purposes of the Convention was to separate the legislative from the executive functions. He said:
If there is a principle in our Constitution, indeed in any free Constitution, more sacred than another, it is that which separates the Legislative, Executive and Judicial powers. If there is any point in which the separation of the Legislative and Executive powers ought to be maintained with great caution, it is that which relates to officers and offices.
1 Annals of Congress, 581.
Their union under the Confederation had not worked well, as the members of the convention knew. Montesquieu's view that the maintenance of independence as between the legislative, the executive, and the judicial branches was a security for the people had their full approval. Madison in the Convention, 2 Farrand, Records of the Federal Convention, 56. Kendall v. United States, 12 Peters 524, 610. Accordingly, the Constitution was so framed as to vest in the Congress all legislative powers therein granted, to vest in the President the executive power, and to vest in one Supreme Court and such inferior courts as Congress might establish the judicial power. From this division on principle, the reasonable construction of the Constitution must be that the branches should be kept separate in all cases in which they were not expressly blended, and the Constitution should be expounded to blend them no more than it affirmatively requires. Madison, 1 Annals of Congress, 497. This rule of construction has been confirmed by this Court in Meriwether v. Garrett, 102 U.S. 472, 515; Kilbourn v. Thompson, 103 U.S. 168, 190; Mugler v. Kansas, 123 U.S. 623, 662.
The debates in the Constitutional Convention indicated an intention to create a strong Executive, and, after a controversial discussion, the executive power of the Government was vested in one person and many of his important functions were specified so as to avoid the [p117] humiliating weakness of the Congress during the Revolution and under the Articles of Confederation. 1 Farrand, 66-97.
Mr. Madison and his associates in the discussion in the House dwelt at length upon the necessity there was for construing Article II to give the President the sole power of removal in his responsibility for the conduct of the executive branch, and enforced this by emphasizing his duty expressly declared in the third section of the Article to "take care that the laws be faithfully executed." Madison, 1 Annals of Congress, 496, 497.
The vesting of the executive power in the President was essentially a grant of the power to execute the laws. But the President, alone and unaided, could not execute the laws. He must execute them by the assistance of subordinates. This view has since been repeatedly affirmed by this Court. Wilcox v. Jackson, 13 Peters 498, 513; United States v. Eliason, 16 Peters 291, 302; Williams v. United States, 1 How. 290, 297; Cunningham v. Neagle, 135 U.S. 1, 63; Russell Co. v. United States, 261 U.S. 514, 523. As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that, as part of his executive power, he should select those who were to act for him under his direction in the execution of the laws. The further implication must be, in the absence of any express limitation respecting removals, that, as his selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for whom he cannot continue to be responsible. Fisher Ames, 1 Annals of Congress, 474. It was urged that the natural meaning of the term "executive power" granted the President included the appointment and removal of executive subordinates. If such appointments and removals were not an exercise of the executive power, what were they? They certainly [p118] were not the exercise of legislative or judicial power in government as usually understood.
It is quite true that, in state and colonial governments at the time of the Constitutional Convention, power to make appointments and removals had sometimes been lodged in the legislatures or in the courts, but such a disposition of it was really vesting part of the executive power in another branch of the Government. In the British system, the Crown, which was the executive, had the power of appointment and removal of executive officers, and it was natural, therefore, for those who framed our Constitution to regard the words "executive power" as including both. Ex Parte Grossman, 267 U.S. 87, 110. Unlike the power of conquest of the British Crown, considered and rejected as a precedent for us in Fleming v. Page, 9 How. 603, 618, the association of removal with appointment of executive officers is not incompatible with our republican form of Government.
The requirement of the second section of Article II that the Senate should advise and consent to the Presidential appointments, was to be strictly construed. The words of section 2, following the general grant of executive power under section 1, were either an enumeration and emphasis of specific functions of the Executive, not all-inclusive, or were limitations upon the general grant of the executive power, and, as such, being limitations, should not be enlarged beyond the words used. Madison, 1 Annals, 462, 463, 464. The executive power was given in general terms, strengthened by specific terms where emphasis was regarded as appropriate, and was limited by direct expressions where limitation was needed, and the fact that no express limit was placed on the power of removal by the Executive was convincing indication that none was intended. This is the same construction of Article II as that of Alexander Hamilton quoted infra. [p119]
Second. The view of Mr. Madison and his associates was that not only did the grant of executive power to the President in the first section of Article II carry with it the power of removal, but the express recognition of the power of appointment in the second section enforced this view on the well approved principle of constitutional and statutory construction that the power of removal of executive officers was incident to the power of appointment. It was agreed by the opponents of the bill, with only one or two exceptions, that, as a constitutional principle, the power of appointment carried with it the power of removal. Roger Sherman, 1 Annals of Congress, 491. This principle, as a rule of constitutional and statutory construction then generally conceded, has been recognized ever since. Ex parte Hennen, 13 Peters 230, 259; Reagan v. United States, 182 U.S. 419; Shurtleff v. United States, 189 U.S. 311, 315. The reason for the principle is that those in charge of and responsible for administering functions of government who select their executive subordinates need, in meeting their responsibility, to have the power to remove those whom they appoint.
Under section 2 of Article II, however, the power of appointment by the Executive is restricted in its exercise by the provision that the Senate, a part of the legislative branch of the Government, may check the action of the Executive by rejecting the officers he selects. Does this make the Senate part of the removing power? And this, after the whole discussion in the House is read attentively, is the real point which was considered and decided in the negative by the vote already given.
The history of the clause by which the Senate was given a check upon the President's power of appointment makes it clear that it was not prompted by any desire to limit removals. As already pointed out, the important purpose of those who brought about the restriction was to lodge in the Senate, where the small States had equal [p120] representation with the larger States, power to prevent the President from making too many appointments from the larger States. Roger Sherman and Oliver Ellsworth, delegates from Connecticut, reported to its Governor:
The equal representation of the States in the Senate and the voice of that branch in the appointment to offices will secure the rights of the lesser as well as of the greater States.
3 Farrand, 99. The formidable opposition to the Senate's veto on the President's power of appointment indicated that, in construing its effect, it should not be extended beyond its express application to the matter of appointments. This was made apparent by the remarks of Abraham Baldwin, of Georgia, in the debate in the First Congress. He had been a member of the Constitutional Convention. In opposing the construction which would extend the Senate's power to check appointments to removals from office, he said:
I am well authorized to say that the mingling of the powers of the President and Senate was strongly opposed in the Convention which had the honor to submit to the consideration of the United States and the different States the present system for the government of the Union. Some gentlemen opposed it to the last, and finally it was the principal ground on which they refused to give it their signature and assent. One gentleman called it a monstrous and unnatural connexion, and did not hesitate to affirm it would bring on convulsions in the government. This objection was not confined to the walls of the Convention; it has been subject of newspaper declamation, and perhaps justly so. Ought we not, therefore, to be careful not to extend this unchaste connexion any further?
1 Annals of Congress, 557.
Perhaps there was no argument urged with more success or more plausibly grounded against the Constitution under which we are now deliberating than that founded [p121] on the mingling of the executive and legislative branches of the Government in one body. It has been objected that the Senate have too much of the executive power even, by having control over the President in the appointment to office. Now shall we extend this connexion between the legislative and executive departments which will strengthen the objection and diminish the responsibility we have in the head of the Executive?
1 Annals of Congress, 380.
It was pointed out in this great debate that the power of removal, though equally essential to the executive power, is different in its nature from that of appointment. Madison, 1 Annals of Congress, 497, et seq.; Clymer, 1 Annals, 489; Sedgwick, 1 Annals, 522; Ames, 1 Annals, 541, 542; Hartley, 1 Annals, 481. A veto by the Senate -- a part of the legislative branch of the Government -- upon removals is a much greater limitation upon the executive branch and a much more serious blending of the legislative with the executive than a rejection of a proposed appointment. It is not to be implied. The rejection of a nominee of the President for a particular office does not greatly embarrass him in the conscientious discharge of his high duties in the selection of those who are to aid him, because the President usually has an ample field from which to select for office, according to his preference, competent and capable men. The Senate has full power to reject newly proposed appointees whenever the President shall remove the incumbents. Such a check enables the Senate to prevent the filling of offices with bad or incompetent men or with those against whom there is tenable objection.
The power to prevent the removal of an officer who has served under the President is different from the authority to consent to or reject his appointment. When a nomination is made, it may be presumed that the Senate is, or may become, as well advised as to the fitness of the nominee [p122] as the President, but, in the nature of things, the defects in ability or intelligence or loyalty in the administration of the laws of one who has served as an officer under the President are facts as to which the President, or his trusted subordinates, must be better informed than the Senate, and the power to remove him may, therefore, be regarded as confined, for very sound and practical reasons, to the governmental authority which has administrative control. The power of removal is incident to the power of appointment, not to the power of advising and consenting to appointment, and when the grant of the executive power is enforced by the express mandate to take care that the laws be faithfully executed, it emphasizes the necessity for including within the executive power as conferred the exclusive power of removal.
Oliver Ellsworth was a member of the Senate of the First Congress, and was active in securing the imposition of the Senate restriction upon appointments by the President. He was the author of the Judiciary Act in that Congress, and subsequently Chief Justice of the United States. His view as to the meaning of this article of the Constitution, upon the point as to whether the advice of the Senate was necessary to removal, like that of Madison, formed and expressed almost in the very atmosphere of the Convention, was entitled to great weight. What he said in the discussion in the Senate was reported by Senator William Patterson, 2 Bancroft, History of the Constitution of the United States, 192, as follows:
The three distinct powers, legislative, judicial and executive, should be placed in different hands. "He shall take care that the laws be faithfully executed" are sweeping words. The officers should be attentive to the President to whom the Senate is not a council. To turn a man out of office is an exercise neither of legislative nor of judicial power; it is like a tree growing upon land that has been granted. The advice of the Senate does not make the appointment. The President appoints. There [p123] are certain restrictions in certain cases, but the restriction is as to the appointment, and not as to the removal.
In the discussion in the First Congress, fear was expressed that such a constitutional rule of construction as was involved in the passage of the bill would expose the country to tyranny through the abuse of the exercise of the power of removal by the President. Underlying such fears was the fundamental misconception that the President's attitude in his exercise of power is one of opposition to the people, while the Congress is their only defender in the Government, and such a misconception may be noted in the discussions had before this Court. This view was properly contested by Mr. Madison in the discussion (1 Annals of Congress, 461), by Mr. Hartley (1 Annals, 481), by Mr.Lawrence (1 Annals, 485), and by Mr. Scott (1 Annals, 533). The President is a representative of the people just as the members of the Senate and of the House are, and it may be, at some times, on some subjects, that the President elected by all the people is rather more representative of them all than are the members of either body of the Legislature, whose constituencies are local, and not countrywide; and, as the President is elected for four years, with the mandate of the people to exercise his executive power under the Constitution, there would seem to be no reason for construing that instrument in such a way as to limit and hamper that power beyond the limitations of it, expressed or fairly implied.
Another argument advanced in the First Congress against implying the power of removal in the President alone from its necessity in the proper administration of the executive power was that all embarrassment in this respect could be avoided by the President's power of suspension of officers, disloyal or incompetent, until the Senate could act. To this, Mr. Benson, said:
Gentlemen ask, will not the power of suspending an officer be sufficient to prevent mal-conduct? Here is some [p124] inconsistency in their arguments. They declare that Congress have no right to construe the Constitution in favor of the President with respect to removal; yet they propose to give a construction in favor of the power of suspension being exercised by him. Surely gentlemen do not pretend that the President has the power of suspension granted expressly by the Constitution; if they do, they have been more successful in their researches into that instrument than I have been. If they are willing to allow a power of suspending, it must be because they construe some part of the Constitution in favor of such a grant. The construction in this case must be equally unwarrantable. But admitting it proper to grant this power, what then? When an officer is suspended, does the place become vacant? May the President proceed to fill it up? Or must the public business be likewise suspended? When we say an officer is suspended, it implies that the place is not vacant; but the parties may be heard, and, after the officer is freed from the objections that have been taken to his conduct, he may proceed to execute the duties attached to him. What would be the consequence of this? If the Senate, upon its meeting, were to acquit the officer, and replace him in his station, the President would then have a man forced on him whom he considered as unfaithful, and could not, consistent with his duty, and a proper regard to the general welfare, go so far as to entrust him with full communications relative to the business of his department. Without a confidence in the Executive department, its operations would be subject to perpetual discord, and the administration of the Government become impracticable.
1 Annals of Congress, 506.
Mr. Vining said:
The Departments of Foreign Affairs and War are peculiarly within the powers of the President, and he must be responsible for them; but take away his controlling power, and upon what principle do you require his responsibility? [p125]
The gentlemen say the President may suspend. They were asked if the Constitution gave him this power any more than the other? Do they contend the one to be a more inherent power than the other? If they do not, why shall it be objected to us that we are making a Legislative construction of the Constitution, when they are contending for the same thing?
1 Annals of Congress, 512.
In the case before us, the same suggestion has been made for the same purpose, and we think it is well answered in the foregoing. The implication of removal by the President alone is no more a strained construction of the Constitution than that of suspension by him alone, and the broader power is much more needed and more strongly to be implied.
Third. Another argument urged against the constitutional power of the President alone to remove executive officers appointed by him with the consent of the Senate is that, in the absence of an express power of removal granted to the President, power to make provision for removal of all such officers is vested in the Congress by section 8 of Article I.
Mr. Madison, mistakenly thinking that an argument like this was advanced by Roger Sherman, took it up and answered it as follows:
He seems to think (if I understand him rightly) that the power of displacing from office is subject to Legislative discretion, because, having a right to create, it may limit or modify as it thinks proper. I shall not say but at first view this doctrine may seem to have some plausibility. But when I consider that the Constitution clearly intended to maintain a marked distinction between the Legislative, Executive, and Judicial powers of Government, and when I consider that, if the Legislature has a power such as is contended for, they may subject and transfer at discretion powers from one department of our Government to another; they may, on that principle, [p126] exclude the President altogether from exercising any authority in the removal of officers; they may give [it] to the Senate alone, or the President and Senate combined; they may vest it in the whole Congress; or they may reserve it to be exercised by this house. When I consider the consequences of this doctrine, and compare them with the true principles of the Constitution, I own that I cannot subscribe to it. . . .
1 Annals of Congress, 495, 496.
Of the eleven members of the House who spoke from amongst the twenty-two opposing the bill, two insisted that there was no power of removing officers after they had been appointed, except by impeachment, and that the failure of the Constitution expressly to provide another method of removal involved this conclusion. Eight of them argued that the power of removal was in the President and the Senate -- that the House had nothing to do with it, and most of these were very insistent upon this view in establishing their contention that it was improper for the House to express in legislation any opinion on the constitutional question whether the President could remove without the Senate's consent.
The constitutional construction that excludes Congress from legislative power to provide for the removal of superior officers finds support in the second section of Article II. By it, the appointment of all officers, whether superior or inferior, by the President is declared to be subject to the advice and consent of the Senate. In the absence of any specific provision to the contrary, the power of appointment to executive office carries with it, as a necessary incident, the power of removal. Whether the Senate must concur in the removal is aside from the point we now are considering. That point is that, by the specific constitutional provision for appointment of executive officers, with its necessary incident of removal, the power of appointment and removal is clearly provided for by [p127] the Constitution, and the legislative power of Congress in respect to both is excluded save by the specific exception as to inferior offices in the clause that follows, viz.,
but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
These words, it has been held by this Court, give to Congress the power to limit and regulate removal of such inferior officers by heads of departments when it exercises its constitutional power to lodge the power of appointment with them. United States v. Perkins, 116 U.S. 483, 485. Here, then, is an express provision, introduced in words of exception, for the exercise by Congress of legislative power in the matter of appointments and removals in the case of inferior executive officers. The phrase "But Congress may by law vest" is equivalent to "excepting that Congress may by law vest." By the plainest implication, it excludes Congressional dealing with appointments or removals of executive officers not falling within the exception, and leaves unaffected the executive power of the President to appoint and remove them.
A reference of the whole power of removal to general legislation by Congress is quite out of keeping with the plan of government devised by the framers of the Constitution. It could never have been intended to leave to Congress unlimited discretion to vary fundamentally the operation of the great independent executive branch of government, and thus most seriously to weaken it. It would be a delegation by the Convention to Congress of the function of defining the primary boundaries of another of the three great divisions of government. The inclusion of removals of executive officers in the executive power vested in the President by Article II, according to its usual definition, and the implication of his power of removal of such officers from the provision of section 2 expressly recognizing in him the power of their appointment, [p128] are a much more natural and appropriate source of the removing power.
It is reasonable to suppose also that, had it been intended to give to Congress power to regulate or control removals in the manner suggested, it would have been included among the specifically enumerated legislative powers in Article I, or in the specified limitations on the executive power in Article II. The difference between the grant of legislative power under Article I to Congress, which is limited to powers therein enumerated, and the more general grant of the executive power to the President under Article II, is significant. The fact that the executive power is given in general terms, strengthened by specific terms where emphasis is appropriate, and limited by direct expressions where limitation is needed, and that no express limit is placed on the power of removal by the executive, is a convincing indication that none was intended.
It is argued that the denial of the legislative power to regulate removals in some way involves the denial of power to prescribe qualifications for office, or reasonable classification for promotion, and yet that has been often exercised. We see no conflict between the latter power and that of appointment and removal, provided, of course, that the qualifications do not so limit selection and so trench upon executive choice as to be, in effect, legislative designation. As Mr. Madison said in the First Congress:
The powers relative to offices are partly Legislative and partly Executive. The Legislature creates the office, defines the powers, limits its duration, and annexes a compensation. This done, the Legislative power ceases. They ought to have nothing to do with designating the man to fill the office. That I conceive to be of an Executive nature. Although it be qualified in the Constitution, I would not extend or strain that qualification beyond the limits precisely fixed for it. We ought always to consider [p129] the Constitution with an eye to the principles upon which it was founded. In this point of view, we shall readily conclude that, if the Legislature determines the powers, the honors, and emoluments of an office, we should be insecure if they were to designate the officer also. The nature of things restrains and confines the Legislative and Executive authorities in this respect, and hence it is that the Constitution stipulates for the independence of each branch of the Government.
1 Annals of Congress, 581, 582.
The legislative power here referred to by Mr. Madison is the legislative power of Congress under the Constitution, not legislative power independently of it. Article II expressly and by implication withholds from Congress power to determine who shall appoint and who shall remove except as to inferior offices. To Congress under its legislative power is given the establishment of offices, the determination of their functions and jurisdiction, the prescribing of reasonable and relevant qualifications and rules of eligibility of appointees, and the fixing of the term for which they are to be appointed, and their compensation -- all except as otherwise provided by the Constitution.
An argument in favor of full Congressional power to make or withhold provision for removals of all appointed by the President is sought to be found in an asserted analogy between such a power in Congress and its power in the establishment of inferior federal courts. By Article III, the judicial power of the United States is vested in one Supreme Court and in such inferior courts as the Congress may from time to time establish. By section 8 of Article I, also, Congress is given power to constitute tribunals inferior to the Supreme Court. By the second section, the judicial power is extended to all cases in law and equity under this Constitution and to a substantial number of other classes of cases. Under the accepted [p130] construction, the cases mentioned in this section are treated as a description and reservoir of the judicial power of the United States and a boundary of that federal power as between the United States and the States, and the field of jurisdiction within the limits of which Congress may vest particular jurisdiction in anyone inferior federal court which it may constitute. It is clear that the mere establishment of a federal inferior court does not vest that court with all the judicial power of the United States as conferred in the second section of Article III, but only that conferred by Congress specifically on the particular court. It must be limited territorially and in the classes of cases to be heard, and the mere creation of the court does not confer jurisdiction except as it is conferred in the law of its creation or its amendments. It is said that, similarly, in the case of the executive power which is "vested in the President," the power of appointment and removal cannot arise until Congress creates the office and its duties and powers, and must accordingly be exercised and limited only as Congress shall, in the creation of the office, prescribe.
We think there is little or no analogy between the two legislative functions of Congress in the cases suggested. The judicial power described in the second section of Article III is vested in the courts collectively, but is manifestly to be distributed to different courts and conferred or withheld as Congress shall, in its discretion, provide their respective jurisdictions, and is not all to be vested in one particular court. Any other construction would be impracticable. The duty of Congress, therefore, to make provision for the vesting of the whole federal judicial power in federal courts, were it held to exist, would be one of imperfect obligation, and unenforceable. On the other hand, the moment an office and its powers and duties are created, the power of appointment and removal, as limited by the Constitution, vests in the Executive. [p131] The functions of distributing jurisdiction to courts, and the exercise of it when distributed and vested, are not at all parallel to the creation of an office, and the mere right of appointment to, and of removal from, the office, which at once attaches to the Executive by virtue of the Constitution.
Fourth. Mr. Madison and his associates pointed out with great force the unreasonable character of the view that the Convention intended, without express provision, to give to Congress or the Senate, in case of political or other differences, the means of thwarting the Executive in the exercise of his great powers and in the bearing of his great responsibility, by fastening upon him, as subordinate executive officers, men who, by their inefficient service under him, by their lack of loyalty to the service, or by their different views of policy, might make his taking care that the laws be faithfully executed most difficult or impossible.
As Mr. Madison said in the debate in the First Congress:
Vest this power in the Senate jointly with the President, and you abolish at once that great principle of unity and responsibility in the Executive department which was intended for the security of liberty and the public good. If the President should possess alone the power of removal from office, those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved, the lowest officers, the middle grade, and the highest, will depend, as they ought, on the President, and the President on the community.
1 Annals of Congress, 499.
Mr. Boudinot of New Jersey said upon the same point:
The supreme Executive officer against his assistant, and the Senate are to sit as judges to determine whether sufficient cause of removal exists. Does not this set the Senate over the head of the President? But suppose they [p132] shall decide in favor of the officer, what a situation is the President then in, surrounded by officers with whom, by his situation, he is compelled to act, but in whom he can have no confidence, reversing the privilege given him by the Constitution to prevent his having officers imposed upon him who do not meet his approbation?
1 Annals of Congress, 468.
Mr. Sedgwick of Massachusetts asked the question:
Shall a man under these circumstances be saddled upon the President who has been appointed for no other purpose but to aid the President in performing certain duties? Shall he be continued, I ask again, against the will of the President? If he is, where is the responsibility? Are you to look for it in the President, who has no control over the officer, no power to remove him if he acts unfeelingly or unfaithfully? Without you make him responsible, you weaken and destroy the strength and beauty of your system.
1 Annals of Congress, 522.
Made responsible under the Constitution for the effective enforcement of the law, the President needs as an indispensable aid to meet it the disciplinary influence upon those who act under him of a reserve power of removal. But it is contended that executive officers appointed by the President with the consent of the Senate are bound by the statutory law, and are not his servants to do his will, and that his obligation to care for the faithful execution of the laws does not authorize him to treat them as such. The degree of guidance in the discharge of their duties that the President may exercise over executive officers varies with the character of their service as prescribed in the law under which they act. The highest and most important duties which his subordinates perform are those in which they act for him. In such cases, they are exercising not their own, but his, discretion. This field is a very large one. It is sometimes described as political. Kendall v. United States, 12 [p133] Peters 524 at p. 610. Each head of a department is and must be the President's alter ego in the matters of that department where the President is required by law to exercise authority.
The extent of the political responsibility thrust upon the President is brought out by Mr. Justice Miller, speaking for the Court in Cunningham v. Neagle, 135 U.S. 1 at p. 63:
The Constitution, section 3, Article 2, declares that the President "shall take care that the laws be faithfully executed," and he is provided with the means of fulfilling this obligation by his authority to commission all the officers of the United States, and by and with the advice and consent of the Senate to appoint the most important of them and to fill vacancies. He is declared to be commander in chief of the army and navy of the United States. The duties which are thus imposed upon him he is further enabled to perform by the recognition in the Constitution, and the creation by Acts of Congress, of executive departments, which have varied in number from four or five to seven or eight, the heads of which are familiarly called cabinet ministers. These aid him in the performance of the great duties of his office and represent him in a thousand acts to which it can hardly be supposed his personal attention is called, and thus he is enabled to fulfill the duty of his great department, expressed in the phrase that "he shall take care that the laws be faithfully executed."
He instances executive dealings with foreign governments, as in the case of Martin Koszta, and he might have added the Jonathan Robbins case as argued by John Marshall in Congress, 5 Wheat. Appendix 1, and approved by this Court in Fong Yue Ting v. United States, 149 U.S. 698, 714. He notes the President's duty as to the protection of the mails, as to which the case of In re Debs, 158 U.S. 564, 582-584 affords an illustration. He [p134] instances executive obligation in protection of the public domain, as in United States v. San Jacinto Tin Co., 125 U.S. 273, and United States v. Hughes, 11 How. 552. The possible extent of the field of the President's political executive power may be judged by the fact that the quasi-civil governments of Cuba, Porto Rico and the Philippines, in the silence of Congress, had to be carried on for several years solely under his direction as commander in chief.
In all such cases, the discretion to be exercised is that of the President in determining the national public interest and in directing the action to be taken by his executive subordinates to protect it. In this field, his cabinet officers must do his will. He must place in each member of his official family, and his chief executive subordinates, implicit faith. The moment that he loses confidence in the intelligence, ability, judgment or loyalty of anyone of them, he must have the power to remove him without delay. To require him to file charges and submit them to the consideration of the Senate might make impossible that unity and coordination in executive administration essential to effective action.
The duties of the heads of departments and bureaus in which the discretion of the President is exercised and which we have described are the most important in the whole field of executive action of the Government. 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. [p135]
But this is not to say that there are not strong reasons why the President should have a like power to remove his appointees charged with other duties than those above described. The ordinary duties of officers prescribed by statute come under the general administrative control of the President by virtue of the general grant to him of the executive power, and he may properly supervise and guide their construction of the statutes under which they act in order to secure that unitary and uniform execution of the laws which Article II of the Constitution evidently contemplated in vesting general executive power in the President alone. Laws are often passed with specific provision for the adoption of regulations by a department or bureau head to make the law workable and effective. The ability and judgment manifested by the official thus empowered, as well as his energy and stimulation of his subordinates, are subjects which the President must consider and supervise in his administrative control. Finding such officers to be negligent and inefficient, the President should have the power to remove them. Of course, there may be duties so peculiarly and specifically committed to the discretion of a particular officer as to raise a question whether the President may overrule or revise the officer's interpretation of his statutory duty in a particular instance. Then there may be duties of a quasi-judicial character imposed on executive officers and members of executive tribunals whose decisions after hearing affect interests of individuals, the discharge of which the President cannot in a particular case properly influence or control. But even in such a case, he may consider the decision after its rendition as a reason for removing the officer, on the ground that the discretion regularly entrusted to that officer by statute has not been, on the whole, intelligently or wisely exercised. Otherwise, he does not discharge his own constitutional duty of seeing that the laws be faithfully executed. [p136]
We have devoted much space to this discussion and decision of the question of the Presidential power of removal in the First Congress, not because a Congressional conclusion on a constitutional issue is conclusive, but, first, because of our agreement with the reasons upon which it was avowedly based; second, because this was the decision of the First Congress, on a question of primary importance in the organization of the Government, made within two years after the Constitutional Convention and within a much shorter time after its ratification; and, third, because that Congress numbered among its leaders those who had been members of the Convention. It must necessarily constitute a precedent upon which many future laws supplying the machinery of the new Government would be based, and, if erroneous, it would be likely to evoke dissent and departure in future Congresses. It would come at once before the executive branch of the Government for compliance, and might well be brought before the judicial branch for a test of its validity. As we shall see, it was soon accepted as a final decision of the question by all branches of the Government.
It was, of course, to be expected that the decision would be received by lawyers and jurists with something of the same division of opinion as that manifested in Congress, and doubts were often expressed as to its correctness. But the acquiescence which was promptly accorded it after a few years was universally recognized.
A typical case of such acquiescence was that of Alexander Hamilton. In the discussion in the House of Representatives in 1789, Mr. White and others cited the opinion of Mr. Hamilton in respect of the necessity for the consent of the Senate to removals by the President, before they should be effective. (1 Annals, First Congress, 456.) It was expressed in No. 77 of the Federalist as follows: [p137]
It has been mentioned as one of the advantages to be expected from the cooperation of the Senate in the business of appointments that it would contribute to the stability of the Administration. The consent of that body would be necessary to displace, as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the Government as might be expected if he were the sole disposer of offices.
Hamilton changed his view of this matter during his incumbency as Secretary of the Treasury in Washington's Cabinet, as is shown by his view of Washington's first proclamation of neutrality in the war between France and Great Britain. That proclamation was at first criticized as an abuse of executive authority. It has now come to be regarded as one of the greatest and most valuable acts of the first President's Administration, and has been often followed by succeeding Presidents. Hamilton's argument was that the Constitution, by vesting the executive power in the President, gave him the right, as the organ of intercourse between the Nation and foreign nations, to interpret national treaties and to declare neutrality. He deduced this from Article II of the Constitution on the executive power, and followed exactly the reasoning of Madison and his associates as to the executive power upon which the legislative decision of the First Congress as to Presidential removals depends, and he cites it as authority. He said:
The second article of the Constitution of the United States, section first, establishes this general proposition, that "the Executive Power shall be vested in a President of the United States of America."
The same article, in a succeeding section, proceeds to delineate particular cases of executive power. It declares, among other things, that the President shall be commander in chief of the army and navy of the United [p138] States, and of the militia of the several states, when called into the actual service of the United States; that he shall have power, by and with the advice and consent of the Senate, to make treaties; that it shall be his duty to receive ambassadors and other public ministers, and to take care that the laws be faithfully executed.
It would not consist with the rules of sound construction to consider this enumeration of particular authorities as derogating from the more comprehensive grant in the general clause, further than as it may be coupled with express restrictions or limitations; as in regard to the cooperation of the Senate in the appointment of officers and the making of treaties; which are plainly qualifications of the general executive powers of appointing officers and making treaties. The difficulty of a complete enumeration of all the cases of executive authority would naturally dictate the use of general terms, and would render it improbable that a specification of certain particulars was designed as a substitute for those terms, when antecedently used. The different mode of expression employed in the Constitution, in regard to the two powers, the legislative and the executive, serves to confirm this inference. In the article which gives the legislative powers of the government, the expressions are "All legislative powers herein granted shall be vested in a congress of the United States." In that which grants the executive power, the expressions are "The executive power shall be vested in a President of the United States."
The enumeration ought therefore to be considered as intended merely to specify the principal articles implied in the definition of executive power, leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free government.
The general doctrine of our Constitution, then, is that the executive power of the nation is vested in the President, [p139] subject only to the exceptions and qualifications, which are expressed in the instrument.
Two of these have already been noticed; the participation of the Senate in the appointment of officers and in the making of treaties. A third remains to be mentioned: the right of the legislature to "declare war and grant letters of marque and reprisal."
With these exceptions, the executive power of the United States is completely lodged in the President. This mode of construing the Constitution has indeed been recognized by Congress in formal acts upon full consideration and debate, of which the power of removal from office is an important instance. It will follow that, if a proclamation of neutrality is merely an executive act, as it is believed, has been shown, the step which has been taken by the President is liable to no just exception on the score of authority.
7 J. C. Hamilton's "Works of Hamilton," 80-81.
The words of a second great constitutional authority, quoted as in conflict with the Congressional decision, are those of Chief Justice Marshall. They were used by him in his opinion in Marbury v. Madison, 1 Cranch 137 (1803). The judgment in that case is one of the great landmarks in the history of the construction of the Constitution of the United States, and is of supreme authority, first, in respect of the power and duty of the Supreme Court and other courts to consider and pass upon the validity of acts of Congress enacted in violation of the limitations of the Constitution, when properly brought before them in cases in which the rights of the litigating parties require such consideration and decision, and, second, in respect of the lack of power of Congress to vest in the Supreme Court original jurisdiction to grant the remedy of mandamus in cases in which by the Constitution it is given only appellate jurisdiction. But it is not to be regarded as such authority in respect of the [p140] power of the President to remove officials appointed by the advice and consent of the Senate, for that question was not before the Court.
The case was heard upon a rule served upon James Madison, Secretary of State, to show cause why a writ of mandamus should not issue directing the defendant, Madison, to deliver to William Marbury his commission as a justice of the peace for the County of Washington in the District of Columbia. The rule was discharged by the Supreme Court for the reason that the Court had no jurisdiction in such a case to issue a writ for mandamus.
The Court had, therefore, nothing before it calling for a judgment upon the merits of the question of issuing the mandamus. Notwithstanding this, the opinion considered preliminarily, first, whether the relator had the right to the delivery of the commission, and second, whether it was the duty of the Secretary of State to deliver it to him, and a duty which could be enforced in a court of competent jurisdiction at common law by a writ of mandamus. The facts disclosed by affidavits filed were that President Adams had nominated Marbury to be a justice of the peace in the District of Columbia, under a law of Congress providing for such appointment, by and with the advice and consent of the Senate, for the term of five years, and that the Senate had consented to such an appointment; that the President had signed the commission as provided by the Constitution, and had transmitted it to the Secretary of State, who, as provided by statute, had impressed the seal of the United States thereon. The opinion of the Chief Justice on these questions was that the commission was only evidence of the appointment; that, upon delivery of the signed commission by the President to the Secretary of.State, the office was filled, and the occupant was thereafter entitled to the evidence of his appointment in the form of the commission; that the duty of the Secretary in delivering the commission to the officer entitled [p141] was.merely ministerial, and could be enforced by mandamus; that the function of the Secretary in this regard was entirely to be distinguished from his duty as a subordinate to the President in the discharge of the President's political duties, which could not be controlled.
It would seem that this conclusion applied, under the reasoning of the opinion, whether the officer was removable by the President or not, if in fact the President had not removed him. But the opinion assumed that, in the case of a removable office, the writ would fail, on the presumption that there was in such a case discretion of the appointing power to withhold the commission. And so the Chief Justice proceeded to express an opinion on the question whether the appointee was removable by the President. He said:
As the law creating the office gave the officer a right to hold it for five years, independent of the executive, the appointment was not revocable, but vested in the officer legal rights which are protected by the laws of his country.
There was no answer by Madison to the rule issued in the case. The case went by default. It did not appear, even by avowed opposition to the issue of the writ, that the President had intervened in the matter at all. It would seem to have been quite consistent with the case as shown that this was merely an arbitrary refusal by the Secretary to perform his ministerial function, and, therefore, that the expression of opinion that the officer was not removable by the President was unnecessary, even to the conclusion that a writ in a proper case could issue. However this may be, the whole statement was certainly obiter dictum with reference to the judgment actually reached. The question whether the officer was removable was not argued to the Court by any counsel contending for that view. Counsel for the relator, who made the only argument, contended that the officer was not removable by the President, because he held a judicial office and, [p142] under the Constitution, could not be deprived of his office for the five years of his term by Presidential action. The opinion contains no wider discussion of the question than that quoted above.
While everything that the great Chief Justice said, whether obiter dictum or not, challenges the highest and most respectful consideration, it is clear that the mere statement of the conclusion made by him, without any examination of the discussion which went on in the First Congress, and without reference to the elaborate arguments there advanced to maintain the decision of 1789, cannot be regarded as authority in considering the weight to be attached to that decision -- a decision which, as we shall see, he subsequently recognized as a well established rule of constitutional construction.
In such a case, we may well recur to the Chief Justice's own language in Cohens v. Virginia, 6 Wheat. 264, 399, in which, in declining to yield to the force of his previous language in Marbury v. Madison, which was unnecessary to the judgment in that case and was obiter dictum, he said:
It is a maxim not to be disregarded that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.
The weight of this dictum of the Chief Justice as to a Presidential removal, in Marbury v. Madison, was considered by this Court in Parsons v. United States, 167 [p143] U.S. 324. It was a suit by Parsons against the United States for the payment of the balance due for his salary and fees as United States District Attorney for Alabama. He had been commissioned as such, under the statute, for the term of four years from the date of the commission, subject to the conditions prescribed by law. There was no express power of removal provided. Before the end of the four years, he was removed by the President. He was denied recovery.
The language of the Court in Marbury v. Madison, already referred to, was pressed upon this Court to show that Parsons was entitled, against the Presidential action of removal, to continue in office. If it was authoritative and stated the law as to an executive office, it ended the case; but this Court did not recognize it as such, for the reason that the Chief Justice's language relied on was not germane to the point decided in Marbury v. Madison. If his language was more than a dictum, and was a decision, then the Parsons case overrules it.
Another distinction, suggested by Mr. Justice Peckham in Parsons' case was that the remarks of the Chief Justice were in reference to an office in the District of Columbia over which, by Art. I, sec. 8, subd. 17, Congress had exclusive jurisdiction in all cases, and might not apply to offices outside of the District in respect to which the constant practice and the Congressional decision had been the other way (p. 335). How much weight should be given to this distinction, which might accord to the special exclusive jurisdiction conferred on Congress over the District power to ignore the usual constitutional separation between the executive and legislative branches of the Government, we need not consider.
If the Chief Justice, in Marbury v. Madison, intended to express an opinion for the Court inconsistent with the legislative decision of 1789, it is enough to observe that he changed his mind; for otherwise it is inconceivable that [p144] he should have written and printed his full account of the discussion and decision in the First Congress and his acquiescence in it, to be found in his Life of Washington (Vol. V, pages 192-200).
He concluded his account as follows:
After an ardent discussion which consumed several days, the committee divided, and the amendment [i.e., to strike out from the original bill the words "to be removable by the President"] was negatived by a majority of thirty-four to twenty. The opinion thus expressed by the house of representatives did not explicitly convey their sense of the Constitution. Indeed, the express grant of the power to the president, rather implied a right in the legislature to give or withhold it at their discretion. To obviate any misunderstanding of the principle on which the question had been decided, Mr. Benson [later] moved in the house, when the report of the committee of the whole was taken up, to amend the second clause in the bill so as clearly to imply the power of removal to be solely in the president. He gave notice that, if he should succeed in this, he would move to strike out the words which had been the subject of debate. If those words continued, he said, the power of removal by the president might hereafter appear to be exercised by virtue of a legislative grant only, and consequently be subjected to legislative instability, when he was well satisfied in his own mind that it was by fair construction, fixed in the constitution. The motion was seconded by Mr. Madison, and both amendments were adopted. As the bill passed into a law, it has ever been considered as a full expression of the sense of the legislature on this important part of the American constitution.
This language was first published in 1807, four years after the judgment in Marbury v. Madison, and the edition was revised by the Chief Justice in 1832. 3 Beveridge, Life of Marshall, 248, 252, 272, 273. [p145]
Congress, in a number of acts, followed and enforced the legislative decision of 1789 for seventy-for years. In the act of the First Congress which adapted to the Constitution the ordinance of 1787 for the government of the Northwest Territory, which had provided for the appointment and removal of executive territorial officers by the Congress under the Articles of Confederation, it was said
in all cases where the United States in Congress assembled might, by the said ordinance, revoke any commission or remove from any office, the President is hereby declared to have the same powers of revocation and removal.
1 Stat. 53, c. 8. This was approved eleven days after the act establishing the Department of Foreign Affairs, and was evidently in form a declaration in accord with the legislative constitutional construction of the latter act. In the provision for the Treasury and War Departments, the same formula was used as occurred in the act creating the Department of Foreign Affairs; but it was omitted from other creative acts only because the decision was thought to be settled constitutional construction. In re Hennen, 13 Peters 230, 259.
Occasionally we find that Congress thought it wiser to make express what would have been understood. Thus, in the Judiciary Act of 1789, we find it provided in § 27, 1 Stat. 87, c. 20,
that a marshal shall be appointed in and for each district for the term of four years, but shall be removable at pleasure, whose duty it shall be to attend the District and Circuit Courts.
That act became a law on September 24th, a month after the Congressional debate on removals. It was formulated by a Senate committee, of which Oliver Ellsworth was chairman, and which presumably was engaged in drafting it during the time of that debate. Section 35 of the same act provided for the appointment of an attorney for the United States to prosecute crimes and conduct civil actions on behalf of [p146] the United States, but nothing was said as to his term of office or as to his removal. The difference in the two cases was evidently to avoid any inference from the fixing of the term that a conflict with the legislative decision of 1789 was intended.
In the Act of May 15, 1820, 3 Stat. 582, c. 102, Congress provided that thereafter, all district attorneys, collectors of customs, naval officers, surveyors of the customs, navy agents, receivers of public moneys for land, registers of the land office, paymasters in the army, the apothecary general, the assistant apothecaries general, and the commissary general of purchases, to be appointed under the laws of the United States, should be appointed for the term of four years, but should be removable from office at pleasure.
It is argued that these express provisions for removal at pleasure indicate that, without them, no such power would exist in the President. We cannot accede to this view. Indeed, the conclusion that they were adopted to show conformity to the legislative decision of 1789 is authoritatively settled by a specific decision of this Court.
In the Parsons case, 167 U.S. 324, already referred to, the exact question which the Court had to decide was whether, under § 769 of the Revised Statutes, providing that district attorneys should be appointed for a term of four years and their commissions should cease and expire at the expiration of four years from their respective dates, the appellant, having been removed by the President from his office as district attorney before the end of his term, could recover his salary for the remainder of the term. If the President had no power of removal, then he could recover. The Court held that, under that section, the President did have the power of removal, because of the derivation of the section from the Act of 1820, above quoted. In § 769, the specific provision of the Act of 1820 that the officers should be removable [p147] from office at pleasure was omitted. This Court held that the section should be construed as having been passed in the light of the acquiescence of Congress in the decision of 1789, and therefore included the power of removal by the President, even though the clause for removal was omitted. This reasoning was essential to the conclusion reached, and makes the construction by this Court of the Act of 1820 authoritative. The Court used, in respect of the Act of 1820, this language (167 U.S. 324, 339):
The provision for a removal from office at pleasure was not necessary for the exercise of that power by the President, because of the fact that he was then regarded as being clothed with such power in any event. Considering the construction of the Constitution in this regard as given by the Congress. of 1789, and having in mind the constant and uniform practice of the Government in harmony with such construction, we must construe this act as providing absolutely for the expiration of the term of office at the end of four years, and not as giving a term that shall last, at all events, for that time, and we think the provision that the officials were removable from office at pleasure was but a recognition of the construction thus almost universally adhered to and acquiesced in as to the power of the President to remove.
In the Act of July 17, 1862, 12 Stat. 596, c. 200, Congress actually requested the President to make removals in the following language:
the President of the United States be, and hereby is, authorized and requested to dismiss and discharge from the military service, either in the army, navy, marine corps, or volunteer force, any officer for any cause which, in his judgment, either renders such officer unsuitable for, or whose dismission would promote, the public service.
Attorney General Devens (15 Op.A.G. 421) said of this act that, so far as it gave authority to the President, [p148] it was simply declaratory of the long-established law; that the force of the act was to be found in the word "requested," by which it was intended to reenforce strongly this power in the hands of the President at a great crisis of the state -- a comment by the Attorney General which was expressly approved by this Court in Blake v. United States, 103 U.S. 227, 234.
The acquiescence in the legislative decision of 1789 for nearly three-quarters of a century by all branches of the Government has been affirmed by this Court in unmistakable terms. In Parsons v. United States, already cited, in which the matter of the power of removal was reviewed at length in connection with that legislative decision, this Court, speaking by Mr. Justice Peckham, said (page 330):
Many distinguished lawyers originally had very different opinions in regard to this power from the one arrived at by this Congress, but, when the question was alluded to in after years, they recognized that the decision of Congress in 1789, and the universal practice of the Government under it, had settled the question beyond any power of alteration.
We find this confirmed by Chancellor Kent's and Mr. Justice Story's comments. Chancellor Kent, in writing to Mr. Webster in January, 1830, concerning the decision of 1789, said:
I heard the question debated in the summer of 1789, and Madison, Benson, Ames, Lawrence, etc. were in favor of the right of removal by the President, and such has been the opinion ever since, and the practice. I thought they were right because I then thought this side uniformly right.
Then, expressing subsequent pause and doubt upon this construction as an original question because of Hamilton's original opinion in The Federalist, already referred to, he continued:
On the other hand, it is too late to call the President's power in question after a declaratory act of Congress and [p149] an acquiescence of half a century. We should hurt the reputation of our government with the world, and we are accused already of the Republican tendency of reducing all executive power into the legislative, and making Congress a national convention. That the President grossly abuses the power of removal is manifest, but it is the evil genius of Democracy to be the sport of factions.
1 Private Correspondence of Daniel Webster, Fletcher Webster ed., 486; 1903 National ed., Little Brown Co.
In his Commentaries, referring to this question, the Chancellor said:
This question has never been made the subject of judicial discussion, and the construction given to the Constitution in 1789 has continued to rest on this loose, incidental, declaratory opinion of Congress, and the sense and practice of government since that time. It may now be considered as firmly and definitely settled, and there is good sense and practical utility in the construction.
1 Kent Commentaries, Lecture 14, p. 310, Subject, Marshals.
Mr. Justice Story, after a very full discussion of the decision of 1789 in which he intimates that, as an original question, he would favor the view of the minority, says:
That the final decision of this question so made was greatly influenced by the exalted character of the President then in office was asserted at the time, and has always been believed. Yet the doctrine was opposed, as well as supported, by the highest talents and patriotism of the country. The public, however, acquiesced in this decision, and it constitutes, perhaps, the most extraordinary case in the history of the government of a power, conferred by implication on the executive by the assent of a bare majority of Congress, which has not been questioned on many other occasions. Even the most jealous advocates of state rights seem to have slumbered over this vast reach of authority, and have left it untouched, as the neutral ground of controversy, in which they desired [p150] to reap no harvest, and from which they retired, without leaving any protestations of title or contest. Nor is this general acquiescence and silence without a satisfactory explanation.
2 Story, Constitution, § 1543.
He finds that, until a then very recent period, namely the Administration of President Jackson, the power of unrestricted removal had been exercised by all the Presidents, but that moderation and forbearance had been shown, that, under President Jackson, however, an opposite course had been pursued extensively and brought again the executive power of removal to a severe scrutiny. The learned author then says:
If there has been any aberration from the true constitutional exposition of the power of removal (which the reader must decide for himself), it will be difficult, and perhaps impracticable, after forty years' experience, to recall the practice to correct theory. But, at all events, it will be a consolation to those who love the Union, and honor a devotion to the patriotic discharge of duty, that, in regard to "inferior officers" (which appellation probably includes ninety-nine out of a hundred of the lucrative offices in the government), the remedy for any permanent abuse is still within the power of Congress, by the simple expedient of requiring the consent of the Senate to removals in such cases.
2 Story Constitution, § 1544.
In an article by Mr. Fish contained in the American Historical Association Reports, 1899, p. 67, removals from office, not including Presidential removals in the Army and the Navy, in the administrations from Washington to Johnson, are stated to have been as follows: Washington 17; Adams 19; Jefferson 62; Madison 24; Jackson 180; Van Buren 43; Harrison and Tyler 389; Polk 228; Taylor 491; Fillmore 73; Pierce 771; Buchanan 253; Lincoln 1400; Johnson 726. These, we may infer, were all made in conformity to the legislative decision of 1789.
Mr. Webster is cited as opposed to the decision of the First Congress. His views were evoked by the controversy [p151] between the Senate and President Jackson. The alleged general use of patronage for political purposes by the President, and his dismissal of Duane, Secretary of the Treasury, without reference to the Senate, upon Duane's refusal to remove government deposits from the United States Bank, awakened bitter criticism in the Senate, and led to an extended discussion of the power of removal by the President. In a speech, May 7, 1834, on the President's protest, Mr. Webster asserted that the power of removal, without the consent of the Senate, was in the President alone, according to the established construction of the Constitution, and that Duane's dismissal could not be justly said to be a usurpation. 4 Webster, Works, 103-105. A year later, in February, 1835, Mr. Webster seems to have changed his views somewhat, and, in support of a bill requiring the President in making his removals from office to send to the Senate his reasons therefor, made an extended argument against the correctness of the decision of 1789. He closed his speech thus:
But I think the decision of 1789 has been established by practice, and recognized by subsequent laws, as the settled construction of the Constitution, and that it is our duty to act upon the case accordingly for the present, without admitting that Congress may not, hereafter, if necessity shall require it, reverse the decision of 1789.
4 Webster, 179, 198. Mr. Webster denied that the vesting of the executive power in the President was a grant of power. It amounted, he said, to no more than merely naming the department. Such a construction, although having the support of as great an expounder of the Constitution as Mr. Webster, is not in accord with the usual canon of interpretation of that instrument, which requires that real effect should be given to all the words it uses. Prout v. Starr, 188 U.S. 537, 544; Hurtado v. California, 110 U.S. 516, 534; Prigg v. Pennsylvania, 16 Pet. 539, 612; Holmes v. Jennison, [p152] 14 Pet. 540, 570-571; Cohens v. Virginia, 6 Wheat. 264, 398; Marbury v. Madison, supra, at p. 174. Nor can we concur in Mr. Webster's apparent view that, when Congress, after full consideration and with the acquiescence and long practice of all the branches of the Government, has established the construction of the Constitution, it may, by its mere subsequent legislation, reverse such construction. It is not given power by itself thus to amend the Constitution. It is not unjust to note that Mr. Webster's final conclusion on this head was reached after pronounced political controversy with General Jackson, which he concedes may have affected his judgment and attitude on the subject.
Mr. Clay and Mr. Calhoun, acting upon a like impulse, also vigorously attacked the decision; but no legislation of any kind was adopted in that period to reverse the established constitutional construction, while its correctness was vigorously asserted and acted on by the Executive. On February 10, 1835, President Jackson declined to comply with the Senate resolution, regarding the charges which caused the removal of officials from office, saying:
The President, in cases of this nature, possesses the exclusive power of removal from office, and, under the sanctions of his official oath and of his liability to impeachment, he is bound to exercise it whenever the public welfare shall require. If, on the other hand, from corrupt motives he abuses this power, he is exposed to the same responsibilities. On no principle known to our institutions can he be required to account for the manner in which he discharges this portion of his public duties. save only in the mode and under the forms prescribed by the Constitution.
3 Messages of the Presidents, 1352.
In Ex parte Hennen, 13 Peters 230, decided by this Court in 1839, the prevailing effect of the legislative decision of 1789 was fully recognized. The question there [p153] was of the legality of the removal from office by a United States District Court of its clerk, appointed by it under § 7 of the Judiciary Act, 1 Stat. 76, c. 20. The case was ably argued and the effect of the legislative decision of the First Congress was much discussed. The Court said (pp. 258-259):
The Constitution is silent with respect to the power of removal from office, where the tenure is not fixed. It provides that the judges, both of the supreme and inferior courts, shall hold their offices during good behavior. But no tenure is fixed for the office of clerks. . . . It cannot, for a moment, be admitted that it was the intention of the Constitution that those offices which are denominated inferior offices should be held during life. And if removable at pleasure, by whom is such removal to be made? In the absence of all constitutional provision or statutory regulation, it would seem to be a sound and necessary rule to consider the power of removal as incident to the power of appointment. This power of removal from office was a subject much disputed, and upon which a great diversity of opinion was entertained in the early history of this government. This related, however, to the power of the President to remove officers appointed with the concurrence of the Senate, and the great question was whether the removal was to be by the President alone, or with the concurrence of the Senate, both constituting the appointing power. No one denied the power of the President and Senate jointly to remove where the tenure of the office was not fixed by the Constitution, which was a full recognition of the principle that the power of removal was incident to the power of appointment. But it was very early adopted as the practical construction of the Constitution that this power was vested in the President alone. And such would appear to have been the legislative construction of the Constitution. For, in the organization of the three great [p154] departments of State, War and Treasury, in the year 1789, provision is made for the appointment of a subordinate officer by the head of the department, who should have the charge and custody of the records, books, and papers appertaining to the office when the head of the department should be removed from the office by the President of the United States. (1 Story, 5, 31, 47.) When the Navy Department was established in the year 1798 (1 Story, 498), provision is made for the charge and custody of the books, records, and documents of the department in case of vacancy in the office of secretary, by removal or otherwise. It is not here said, by removal by the President, as is done with respect to the heads of the other departments, and yet there can be no doubt that he holds his office by the same tenure as the other secretaries, and is removable by the President. The change of phraseology arose, probably, from its having become the settled and well understood construction of the Constitution that the power of removal was vested in the President alone in such cases, although the appointment of the officer was by the President and Senate.
The legislative decision of 1789 and this Court's recognition of it were followed, in 1842, by Attorney General Legare, in the Administration of President Tyler (4 Op.A.G. 1); in 1847, by Attorney General Clifford, in the
Administration of President Polk (4 Op.A.G. 603); by Attorney General Crittenden, in the Administration of President Fillmore (5 Op.A.G. 288, 290); by Attorney General Cushing, in the Administration of President Buchanan (6 Op.A.G. 4); all of whom delivered opinions of a similar tenor.
It has been sought to make an argument, refuting our conclusion as to the President's power of removal of executive officers, by reference to the statutes passed and practice prevailing from 1789 until recent years in respect of the removal of judges whose tenure is not fixed by [p155] Article III of the Constitution, and who are not strictly United States Judges under that article. The argument is that, as there is no express constitutional restriction as to the removal of such judges, they come within the same class as executive officers, and that statutes and practice in respect of them may properly be used to refute the authority of the legislative decision of 1789 and acquiescence therein.
The fact seems to be that judicial removals were not considered in the discussion in the First Congress, and that the First Congress, August 7, 1789, 1 Stat. 50-53, c. 8, and succeeding Congresses until 1804, assimilated the judges appointed for the territories to those appointed under Article III, and provided life tenure for them, while other officers of those territories were appointed for a term of years unless sooner removed. See, as to such legislation, dissenting opinion of Mr. Justice McLean in United States v. Guthrie, 17 How. 284, 308. In American Insurance Company v. Canter, 1 Peters 511 (1828), it was held that the territorial courts were not constitutional courts in which the judicial power conferred by the Constitution on the general government could be deposited. After some ten or fifteen years, the judges in some territories were appointed for a term of years, and the Governor and other officers were appointed for a term of years unless sooner removed. Inc Missouri and Arkansas only were the judges appointed for four years if not sooner removed.
After 1804, removals were made by the President of territorial judges appointed for terms of years before the ends of their terms. They were sometimes suspended and sometimes removed. Between 1804 and 1867, there were ten removals of such judges in Minnesota, Utah, Washington, Oregon and Nebraska. The executive department seemed then to consider that territorial judges were subject to removal just as if they had been executive [p156] officers, under the legislative decision of 1789. Such was the opinion of Attorney General Crittenden on the question of the removal of the Chief Justice of Minnesota Territory (5 Op.A.G. 288) in 1851. Since 1867, territorial judges have been removed by the President, seven in Arizona, one in Hawaii, one in Indian Territory, two in Idaho, three in New Mexico, two in Utah, one in Wyoming,
The question of the President's power to remove such a judge, as viewed by Mr. Crittenden, came before this Court in United States v. Guthrie, 17 How. 284. The relator, Goodrich, who had been removed by the President from his office as a territorial judge, sought by mandamus to compel the Secretary of the Treasury to draw his warrant for the relator's salary for the remainder of his term after removal, and contested the Attorney General's opinion that the President's removal in such a case was valid. This Court did not decide this issue, but held that it had no power to issue a writ of mandamus in such a case. Mr. Justice McLean delivered a dissenting opinion (at page 308). He differed from the Court in its holding that mandamus would not issue. He expressed a doubt as to the correctness of the legislative decision of the First Congress as to the power of removal by the President alone of executive officers appointed by him with the consent of the Senate, but admitted that the decision as to them had been so acquiesced in, and the practice had so conformed to it, that it could not be set aside. But he insisted that the statutes and practice which had governed the appointment and removal of territorial judges did not come within the scope and effect of the legislative decision of 1789. He pointed out that the argument upon which the decision rested was based on the necessity for Presidential removals in the discharge by the President of his executive duties and his taking care that the laws be faithfully executed, and that such an argument could not [p157] apply to the judges over whose judicial duties he could not properly exercise any supervision or control after their appointment and confirmation.
In the case of McAllister v. United States, 141 U.S. 174, a judge of the District Court of Alaska, it was held, could be deprived of a right to salary as such by his suspension under Revised Statutes 1768. That section gave the President, in his discretion, authority to suspend any civil officer appointed by and with the advice and consent of the Senate, except judges of the courts of the United States, until the end of the next session of the Senate, and to designate some suitable person, subject to be removed in his discretion by the designation of another, to perform the duties of such suspended officer. It was held that the words "except judges of the courts of the United States" applied to judges appointed under Article III, and did not apply to territorial judges, and that the President, under § 1768, had power to suspend a territorial judge during a recess of the Senate, and no recovery could be had for salary during that suspended period. Mr. Justice Field, with Justices Gray and Brown, dissented on the ground that, in England, by the act of 13th William III, it had become established law that judges should hold their offices independent of executive removal, and that our Constitution expressly makes such limitation as to the only judges specifically mentioned in it, and should be construed to carry such limitation as to other judges appointed under its provisions.
Referring in Parsons v. United States, 167 U.S. 324, at p. 337, to the McAllister case, this Court said:
The case contains nothing in opposition to the contention as to the practical construction that had been given to the Constitution by Congress in 1789, and by the government generally since that time and up to the Act of 1867.
The questions, first, whether a judge appointed by the President with the consent of the Senate under an act of [p158] Congress, not under authority of Article III of the Constitution, can be removed by the President alone without the consent of the Senate, second, whether the legislative decision of 1789 covers such a case, and third, whether Congress may provide for his removal in some other way present considerations different from those which apply in the removal of executive officers, and therefore we do not decide them.
We come now to consider an argument advanced and strongly pressed on behalf of the complainant, that this case concerns only the removal of a postmaster; that a postmaster is an inferior officer; that such an office was not included within the legislative decision of 1789, which related only to superior officers to be appointed by the President by and with the advice and consent of the Senate. This, it is said, is the distinction which Chief Justice Marshall had in mind in Marbury v. Madison in the language already discussed in respect of the President's power to remove a District of Columbia justice of the peace appointed and confirmed for a term of years. We find nothing in Marbury v. Madison to indicate any such distinction. It cannot be certainly affirmed whether the conclusion there stated was based on a dissent from the legislative decision of 1789, or on the fact that the office was created under the special power of Congress exclusively to legislate for the District of Columbia, or on the fact that the office was a judicial one, or on the circumstance that it was an inferior office. In view of the doubt as to what was really the basis of the remarks relied on, and their obiter dictum character, they can certainly not be used to give weight to the argument that the 1789 decision only related to superior officers.
The very heated discussions during General Jackson's Administration, except as to the removal of Secretary Duane, related to the distribution of offices which were, most of them, inferior offices, and it was the operation of [p159] the legislative decision of 1789 upon the power of removal of incumbents of such offices that led the General to refuse to comply with the request of the Senate that he give his reasons for the removals therefrom. It was to such inferior officers that Chancellor Kent's letter to Mr. Webster, already quoted, was chiefly directed, and the language cited from his Commentaries on the decision of 1789 was used with reference to the removal of United States marshal. It was such inferior offices that Mr. Justice Story conceded to be covered by the legislative decision in his Treatise on the Constitution, already cited, when he suggested a method by which the abuse of patronage in such offices might be avoided. It was with reference to removals from such inferior offices that the already cited opinions of the Attorneys General, in which the legislative decision of 1789 was referred to as controlling authority, were delivered. That of Attorney General Legare (4 Op.A.G. 1) affected the removal of a surgeon in the Navy. The opinion of Attorney General Clifford (4 Op.A.G. 603, 612) involved an officer of the same rank. The opinion of Attorney General Cushing (6 Op.A.G. 4) covered the office of military storekeeper. Finally, Parsons' case, where it was the point in judgment, conclusively establishes for this Court that the legislative decision of 1789 applied to a United States attorney, an inferior officer.
It is further pressed on us that, even though the legislative decision of 1789 included inferior officers, yet, under the legislative power given Congress with respect to such officers, it might directly legislate as to the method of their removal without changing their method of appointment by the President with the consent of the Senate. We do not think the language of the Constitution justifies such a contention.
Section 2 of Article II, after providing that the President shall nominate and with the consent of the Senate [p160] appoint ambassadors, other public ministers, consuls, judges of the Supreme Court and all other officers of the United States whose appointments are not herein otherwise provided for, and which shall be established by law, contains the proviso:
but the Congress may by law vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law or in the heads of departments.
In United States v. Perkins, 116 U.S. 483, a cadet engineer, a graduate of the Naval Academy, brought suit to recover his salary for the period after his removal by the Secretary of the Navy. It was decided that his right was established by Revised Statutes 1229, providing that no officer in the military or naval service should in time of peace be dismissed from service except in pursuance of a sentence of court-martial. The section was claimed to be an infringement upon the.constitutional prerogative of the Executive. The Court of Claims refused to yield to this argument, and said:
Whether or not Congress can restrict the power of removal incident to the power of appointment to those officers who are appointed by the President by and with the advice and consent of the Senate under the authority of the Constitution, Article 2, Section 2, does not arise in this case, and need not be considered. We have no doubt that, when Congress by law vests the appointment of inferior officers in the heads of departments, it may limit and restrict the power of removal as it deems best for the public interest. The constitutional authority in Congress to thus vest the appointment implies authority to limit, restrict, and regulate the removal by such laws as Congress may enact in relation to the officers appointed. The head of a department has no constitutional prerogative of appointment to offices independently of the legislation of Congress, and by such legislation he must be governed not only in making appointments, but in all that is incident thereto. [p161]
This language of the Court of Claims was approved by this Court and the judgment was affirmed.
The power to remove inferior executive officers, like that to remove superior executive officers, is an incident of the power to appoint them, and is in its nature an executive power. The authority of Congress given by the excepting clause to vest the appointment of such inferior officers in the heads of departments carries with it authority incidentally to invest the heads of departments with power to remove. It has been the practice of Congress to do so and this Court has recognized that power. The Court also has recognized in the Perkins case that Congress, in committing the appointment of such inferior officers to the heads of departments, may prescribe incidental regulations controlling and restricting the latter in the exercise of the power of removal. But the Court never has held, nor reasonably could hold, although it is argued to the contrary on behalf of the appellant, that the excepting clause enables Congress to draw to itself, or to either branch of it, the power to remove or the right to participate in the exercise of that power. To do this would be to go beyond the words and implications of that clause and to infringe the constitutional principle of the separation of governmental powers.
Assuming then the power of Congress to regulate removals as incidental to the exercise of its constitutional power to vest appointments of inferior officers in the heads of departments, certainly so long as Congress does not exercise that power, the power of removal must remain where the Constitution places it, with the President, as part of the executive power, in accordance with the legislative decision of 1789 which we have been considering.
Whether the action of Congress in removing the necessity for the advice and consent of the Senate, and putting the power of appointment in the President alone, would [p162] make his power of removal in such case any more subject to Congressional legislation than before is a question this Court did not decide in the Perkins case. Under the reasoning upon which the legislative decision of 1789 was put, it might be difficult to avoid a negative answer, but it is not before us and we do not decide it.
The Perkins case is limited to the vesting by Congress of the appointment of an inferior officer in the head of a department. The condition upon which the power of Congress to provide for the removal of inferior officers rests is that it shall vest the appointment in some one other than the President with the consent of the Senate. Congress may not obtain the power and provide for the removal of such officer except on that condition. If it does not choose to entrust the appointment of such inferior officers to less authority than the President with the consent of the Senate, it has no power of providing for their removal. That is the reason why the suggestion of Mr. Justice Story, relied upon in this discussion, cannot be supported if it is to have the construction which is contended for. He says that, in regard to inferior officers under the legislative decision of 1789,
the remedy for any permanent abuse (i.e., of executive patronage) is still within the power of Congress by the simple expedient of requiring the consent of the Senate to removals in such cases.
It is true that the remedy for the evil of political executive removals of inferior offices is with Congress by a simple expedient, but it includes a change of the power of appointment from the President with the consent of the Senate. Congress must determine first that the office is inferior, and second that it is willing that the office shall be filled by appointment by some other authority than the President with the consent of the Senate. That the latter may be an important consideration is manifest, and is the subject of comment by this Court in it opinion in the case of Shurtleff v. United States, 189 U.S. 311, 315, where this Court said: [p163]
To take away this power of removal in relation to an inferior office created by statute, although that statute provided for an appointment thereto by the President and confirmation by the Senate, would require very clear and explicit language. It should not be held to be taken away by mere inference or implication. Congress has regarded the office as of sufficient importance to make it proper to fill it by appointment to be made by the President and confirmed by the Senate. It has thereby classed it as appropriately coming under the direct supervision of the President, and to be administered by officers appointed by him (and confirmed by the Senate) with reference to his constitutional responsibility to see that the laws are faithfully executed. Art. 2, sec. 3.
It is said that, for forty years or more, postmasters were all by law appointed by the Postmaster General. This was because Congress, under the excepting clause, so provided. But thereafter, Congress required certain classes of them to be, as they now are, appointed by the President with the consent of the Senate. This is an indication that Congress deemed appointment by the President with the consent of the Senate essential to the public welfare, and, until it is willing to vest their appointment in the head of the Department, they will be subject to removal by the President alone, and any legislation to the contrary must fall a in conflict with the Constitution.
Summing up, then, the facts as to acquiescence by all branches of the Government in the legislative decision of 1789, as to executive officers, whether superior or inferior, we find that from 1789 until 1863, a period of 74 years, there was no act of Congress, no executive act, and no decision of this Court at variance with the declaration of the First Congress, but there was, as we have seen, clear, affirmative recognition of it by each branch of the Government.
Our conclusion on the merits, sustained by the arguments before stated, is that Article II grants to the President [p164] 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 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.
We come now to a period in the history of the Government when both Houses of Congress attempted to reverse this constitutional construction and to subject the power of removing executive officers appointed by the President and confirmed by the Senate to the control of the Senate -- indeed, finally, to the assumed power in Congress to place the removal of such officers anywhere in the Government.
This reversal grew out of the serious political difference between the two Houses of Congress and President Johnson. [p165] There was a two-thirds majority of the Republican party in control of each House of Congress, which resented what it feared would be Mr. Johnson's obstructive course in the enforcement of the reconstruction measures in respect of the States whose people had lately been at war against the National Government. This led the two Houses to enact legislation to curtail the then acknowledged powers of the President. It is true that, during the latter part of Mr. Lincoln's term, two important voluminous acts were passed, each containing a section which seemed inconsistent with the legislative decision of 1789 (Act of February 25, 1863, 12 Stat. 665, c. 58, § 1, Act of March 3, 1865, 13 Stat. 489, c. 79, § 12); but they were adopted without discussion of the inconsistency, and were not tested by executive or judicial inquiry. The real challenge to the decision of 1789 was begun by the Act of July 13, 1866, 14 Stat. 92, c. 176, forbidding dismissals of Army and Navy officers in time of peace without a sentence by court-martial, which this Court, in Blake v. United States, 103 U.S. 227, at p. 235, attributed to the growing differences between President Johnson and Congress.
Another measure having the same origin and purpose was a rider on an army appropriation act of March 2, 1867, 14 Stat. 487, c. 170, § 2, which fixed the headquarters of the General of the Army of the United States at Washington, directed that all orders relating to military operations by the President or Secretary of War should be issued through the General of the Army, who should not be removed, suspended, or relieved from command, or assigned to duty elsewhere, except at his own request, without the previous approval of the Senate, and that any orders or instructions relating to military operations issued contrary to this should be void, and that any officer of the Army who should issue, knowingly transmit, or obey any orders issued contrary to the provisions of [p166] this section should be liable to imprisonment for years. By the Act of March 27, 1868, 15 Stat. 44, c. 34, § 2, the next Congress repealed a statutory provision as to appeals in habeas corpus cases with the design, as was avowed by Mr. Schenck, chairman of the House Committee on Ways and Means, of preventing this Court from passing on the validity of reconstruction legislation. 81 Congressional Globe, pages 1881, 1883; Ex parte McArdle, 7 Wall. 506.
But the chief legislation in support of the reconstruction policy of Congress was the Tenure of Office Act, of March 2, 1867, 14 Stat. 430, c. 154, providing that all officers appointed by and with the consent of the Senate should hold their offices until their successors should have in like manner been appointed and qualified, and that certain heads of departments, including the Secretary of War, should hold their offices during the term of the President by whom appointed and one month thereafter, subject to removal by consent of the Senate. The Tenure of Office Act was vetoed, but it was passed over the veto. The House of Representatives preferred articles of impeachment against President Johnson for refusal to comply with, and for conspiracy to defeat, the legislation above referred to, but he was acquitted for lack of a two-thirds vote for conviction in the Senate.
In Parsons v. United States, supra, the Court thus refers to the passage of the Tenure of Office Act (p. 340):
The President, as is well known, vetoed the tenure of office act because he said it was unconstitutional in that it assumed to take away the power of removal constitutionally vested in the President of the United States -- a power which had been uniformly exercised by the Executive Department of the Government from its foundation. Upon the return of the bill to Congress, it was passed over the President's veto by both houses, and became a law. The continued and uninterrupted practice of the [p167] Government from 1789 was thus broken in upon and changed by the passage of this act, so that, if constitutional, thereafter all executive officers whose appointments had been made with the advice and consent of the Senate could not be removed by the President without the concurrence of the Senate in such order of removal.
Mr. Blaine, who was in Congress at the time, in afterwards speaking of this bill, said:
It was an extreme proposition -- a new departure from the long-established usage of the Federal Government -- and for that reason, if for no other, personally degrading to the incumbent of the Presidential chair. It could only have grown out of abnormal excitement created by dissensions between the two great departments of the Government. . . . The measure was resorted to as one of self-defense against the alleged aggressions and unrestrained power of the executive department.
Twenty Years of Congress, vol. 2, 273, 274.
The extreme provisions of all this legislation were a full justification for the considerations so strongly advanced by Mr. Madison and his associates in the First Congress for insisting that the power of removal of executive officers by the President alone was essential in the division of powers between the executive and the legislative bodies. It exhibited in a clear degree the paralysis to which a partisan Senate and Congress could subject the executive arm and destroy the principle of executive responsibility and separation of the powers, sought for by the framers of our Government, if the President had no power of removal save by consent of the Senate. It was an attempt to redistribute the powers, and minimize those of the President.
After President Johnson's term ended, the injury and invalidity of the Tenure of Office Act in its radical innovation were immediately recognized by the Executive, and objected to. General Grant, succeeding Mr. Johnson [p168] in the Presidency, earnestly recommended in his first message the total repeal of the act, saying:
It may be well to mention here the embarrassment possible to arise from leaving on the statute books the so-called "tenure of office acts," and to earnestly recommend their total repeal. It could not have been the intention of the framers of the Constitution, when providing that appointments made by the President should receive the consent of the Senate, that the latter should have the power to retain in office persons placed there by Federal appointment against the will of the President. The law is inconsistent with a faithful and efficient administration of the Government. What faith can an Executive put in officials forced upon him, and those, too, whom he has suspended for reason? How will such officials be likely to serve an Administration which they know does not trust them?
9 Messages and papers of the Presidents, 3992.
While, in response to this, a bill for repeal of that act passed the House, it failed in the Senate, and, though the law was changed, it still limited the Presidential power of removal. The feeling growing out of the controversy with President Johnson retained the act on the statute book until 1887, when it was repealed. 24 Stat. 500, c. 353. During this interval, on June 8, 1872, Congress passed an act reorganizing and consolidating the Post Office Department, and provided that the Postmaster General and his three assistants should be appointed by the President by and with the advice and consent of the Senate, and might be removed in the same manner. 17 Stat. 284, c. 335, § 2. In 1876 the act here under discussion was passed, making the consent of the Senate necessary both to the appointment and removal of first, second, and third class postmasters. 19 Stat. 80, c. 179, § 6.
In the same interval, in March, 1886, President Cleveland, in discussing the requests which the Senate had [p169] made for his reasons for removing officials, and the assumption that the Senate had the right to pass upon those removals, and thus to limit the power of the President, said:
I believe the power to remove or suspend such officials is vested in the President alone by the Constitution, which, in express terms, provides that "the executive power shall be vested in a President of the United States of America," and that "he shall take care that the laws be faithfully executed."
The Senate belongs to the legislative branch of the Government. When the Constitution, by express provision, superadded to its legislative duties the right to advise and consent to appointments to office and to sit as a court of impeachment, it conferred upon that body all the control and regulation of Executive action supposed to be necessary for the safety of the people, and this express and special grant of such extraordinary powers, not in any way related to or growing out of general Senatorial duties and, in itself, a departure from the general plan of our Government, should be held, under a familiar maxim of construction, to exclude every other right of interference with Executive functions.
11 Messages and Papers of the Presidents, 4964.
The attitude of the Presidents on this subject has been unchanged and uniform to the present day whenever an issue has clearly been raised. In a message withholding his approval of an act which he thought infringed upon the executive power of removal, President Wilson said:
It has, I think, always been the accepted construction of the Constitution that the power to appoint officers of this kind carries with it, as an incident, the power to remove. I am convinced that the Congress is without constitutional power to limit the appointing power and its incident, the power of removal, derived from the Constitution.
59 Congressional Record (June 4, 1920), 8609. [p170]
And President Coolidge, in a message to Congress in response to a resolution of the Senate that it was the sense of that body that the President should immediately request the resignation of the then Secretary of the Navy, replied:
No official recognition can be given to the passage of the Senate resolution relative to their opinion concerning members of the Cabinet or other officers under executive control.
. . . The dismissal of an officer of the Government, such as is involved in this case, other than by impeachment, is exclusively an executive function. I regard this as a vital principle of our Government.
65 Congressional Record (Feb. 13, 1924), 2335.
In spite of the foregoing Presidential declarations, it is contended that, since the passage of the Tenure of Office Act, there has been general acquiescence by the Executive in the power of Congress to forbid the President alone to remove executive officers -- an acquiescence which has changed any formerly accepted constitutional construction to the contrary. Instances are cited of the signed approval by President Grant and other Presidents of legislation in derogation of such construction. We think these are all to be explained not by acquiescence therein, but by reason of the otherwise valuable effect of the legislation approved. Such is doubtless the explanation of the executive approval of the Act of 1876, which we are considering, for it was an appropriation act on which the section here in question was imposed as a rider.
In the use of Congressional legislation to support or change a particular construction of the Constitution by acquiescence, its weight for the purpose must depend not only upon the nature of the question, but also upon the attitude of the executive and judicial branches of the Government, as well as upon the number of instances in the execution of the law in which opportunity for objection [p171] in the courts or elsewhere is afforded. When instances which actually involve the question are rare, or have not, in fact, occurred, the weight of the mere presence of acts on the statute book for a considerable time, as showing general acquiescence in the legislative assertion of a questioned power, is minimized. No instance is cited to us where any question has arisen respecting a removal of a Postmaster General or one of his assistants. The President's request for resignations of such officers is generally complied with. The same thing is true of the postmasters. There have been many executive removals of them, and but few protests or objections. Even when there has been a refusal by a postmaster to resign, removal by the President has been followed by a nomination of a successor, and the Senate's confirmation has made unimportant the inquiry as to the necessity for the Senate's consent to the removal.
Other acts of Congress are referred to which contain provisions said to be inconsistent with the 1789 decision. Since the provision for an Interstate Commerce Commission, in 1887, many administrative boards have been created whose members are appointed by the President, by and with the advice and consent of the Senate, and in the statutes creating them have been provisions for the removal of the members for specified causes. Such provisions are claimed to be inconsistent with the independent power of removal by the President. This, however, is shown to be unfounded by the case of Shurtleff v. United States, 189 U.S. 311 (1903). That concerned an act creating a board of general appraisers, 26 Stat. 131, 136, c. 407, § 12, and providing for their removal for inefficiency, neglect of duty or malfeasance in office. The President removed an appraiser without notice or hearing. It was forcibly contended that the affirmative language of the statute implied the negative of the power to remove except for cause and after a hearing. This would [p172] have been the usual rule of construction, but the Court declined to apply it. Assuming for the purpose of that case only, but without deciding, that Congress might limit the President's power to remove, the Court held that, in the absence of constitutional or statutory provision otherwise, the President could, by virtue of his general power of appointment, remove an officer though appointed by and with the advice and consent of the Senate and notwithstanding specific provisions for his removal for cause, on the ground that the power of removal inhered in the power to appoint. This is an indication that many of the statutes cited are to be reconciled to the unrestricted power of the President to remove if he chooses to exercise his power.
There are other later acts pointed out in which, doubtless, the inconsistency with the independent power of the President to remove is clearer, but these cannot be said really to have received the acquiescence of the executive branch of the Government. Whenever there has been a real issue in respect of the question of Presidential removals, the attitude of the Executive in Congressional message has been clear and positive against the validity of such legislation. The language of Mr. Cleveland in 1886, twenty years after the Tenure of Office Act, in his controversy with the Senate in respect of his independence of that body in the matter of removing inferior officers appointed by him and confirmed by the Senate, was quite as pronounced as that of General Jackson in a similar controversy in 1835. Mr. Wilson, in 1920, and Mr. Coolidge, in 1924, were quite as all-embracing in their views of the power of removal as General Grant in 1869, and as Mr. Madison and Mr. John Adams in 1789.
The fact seems to be that all departments of the Government have constantly had in mind, since the passage of the Tenure of Office Act, that the question of power of removal by the President of officers appointed by him [p173] with the Senate's consent, has not been settled adversely to the legislative action of 1789, but, in spite of Congressional action, has remained open until the conflict should be subjected to judicial investigation and decision.
The action of this Court cannot be said to constitute assent to a departure from the legislative decision of 1789, when the Parsons and Shurtleff cases, one decided in 1897 and the other in 1903, are considered; for they certainly leave the question open. Wallace v. United States, 257 U.S. 541. Those cases indicate no tendency to depart from the view of the First Congress. This Court has, since the Tenure of Office Act, manifested an earnest desire to avoid a final settlement of the question until it should be inevitably presented, as it is here.
An argument ab inconvenienti has been made against our conclusion in favor of the executive power of removal by the President, without the consent of the Senate -- that it will open the door to a reintroduction of the spoils system. The evil of the spoils system aimed at in the civil service law and its amendments is in respect of inferior offices. It has never been attempted to extend that law beyond them. Indeed, Congress forbids its extension to appointments confirmed by the Senate, except with the consent of the Senate. Act of January 16, 1883, 22 Stat. 403, 406, c. 27, sec. 7. Reform in the federal civil service was begun by the Civil Service Act of 1883. It has been developed from that time, so that the classified service now includes a vast majority of all the civil officers. It may still be enlarged by further legislation. The independent power of removal by the President alone, under present condition, works no practical interference with the merit system. Political appointments of inferior officers are still maintained in one important class, that of the first, second and third class postmasters, collectors of internal revenue, marshals, collectors of customs, and other officers of that [p174] kind, distributed through the country. They are appointed by the President with the consent of the Senate. It is the intervention of the Senate in their appointment, and not in their removal, which prevents their classification into the merit system. If such appointments were vested in the heads of departments to which they belong, they could be entirely removed from politics, and that is what a number of Presidents have recommended. President Hayes, whose devotion to the promotion of the merit system and the abolition of the spoils system was unquestioned, said, in his 4th Annual Message, of December 6, 1880, that the first step to improvement in the civil service must be a complete divorce between Congress and the Executive on the matter of appointments, and he recommended the repeal of the Tenure of Office Act of 1867 for this purpose. 10 & 11 Messages and Papers of the Presidents, 4555-4557. The extension of the merit system rests with Congress.
What, then, are the elements that enter into our decision of this case? We have first a construction of the Constitution made by a Congress which was to provide by legislation for the organization of the Government in accord with the Constitution which had just then been adopted, and in which there were, as representatives and senators, a considerable number of those who had been members of the Convention that framed the Constitution and presented it for ratification. It was the Congress that launched the Government. It was the Congress that rounded out the Constitution itself by the proposing of the first ten amendments, which had, in effect, been promised to the people as a consideration for the ratification. It was the Congress in which Mr. Madison, one of the first in the framing of the Constitution, led also in the organization of the Government under it. It was a Congress whose constitutional decisions have always been regarded, as they should be regarded, as of the greatest [p175] weight in the interpretation of that fundamental instrument. This construction was followed by the legislative department and the executive department continuously for seventy-three years, and this although the matter, in the heat of political differences between the Executive and the Senate in President Jackson's time, was the subject of bitter controversy, as we have seen. This Court has repeatedly laid down the principle that a contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, acquiesced in for a long-term of years, fixes the construction to be given its provisions. Stuart v. Laird, 1 Cranch 299, 309; Martin v. Hunter's Lessee, 1 Wheat. 304, 351; Cohens v. Virginia, 6 Wheat. 264, 420; Prigg v. Pennsylvania, 16 Pet. 544, 621; Cooley v. Board of Wardens, etc., 12 How. 299, 315; Burroughs-Giles Lithographing Company v. Sarony, 111 U.S. 53, 57; Ames v. Kansas, 111 U.S. 449, 463-469; The Laura, 114 U.S. 411, 416; Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 297; McPherson v. Blacker, 146 U.S. 1, 28, 33, 35; Knowlton v. Moore, 178 U.S. 41, 56; Fairbank v. United States, 181 U.S. 283, 308; Ex parte Grossman, 267 U.S. 87, 118.
We are now asked to set aside this construction, thus buttressed, and adopt an adverse view because the Congress of the United States did so during a heated political difference of opinion between the then President and the majority leaders of Congress over the reconstruction measures adopted as a means of restoring to their proper status the States which attempted to withdraw from the Union at the time of the Civil War. The extremes to which the majority in both Houses carried legislative measures in that matter are now recognized by all who calmly review the history of that episode in our Government, leading to articles of impeachment against President Johnson, and his acquittal. Without animadverting [p176] on the character of the measures taken, we are certainly justified in saying that they should not be given the weight affecting proper constitutional construction to be accorded to that reached by the First Congress of the United States during a political calm and acquiesced in by the whole Government for three-quarters of a century, especially when the new construction contended for has never been acquiesced in by either the executive or the judicial departments. While this Court has studiously avoided deciding the issue until it was presented in such a way that it could not be avoided, in the references it has made to the history of the question, and in the presumptions it has indulged in favor of a statutory construction not inconsistent with the legislative decision of 1789, it has indicated a trend of view that we should not and cannot ignore. When, on the merits, we find our conclusion strongly favoring the view which prevailed in the First Congress, we have no hesitation in holding that conclusion to be correct, and it therefore follows that the Tenure of Office Act of 1867, insofar as it attempted to prevent the President from removing executive officer who had been appointed by him by and with the advice and consent of the Senate, was invalid, and that subsequent legislation of the same effect was equally so.
For the reasons given, we must therefore hold that the provision of the law of 1876, by which the unrestricted power of removal of first class postmasters is denied to the President, is in violation of the Constitution, and invalid. This leads to an affirmance of the judgment of the Court of Claims.
Before closing this opinion, we wish to express the obligation of the Court to Mr. Pepper for his able brief and argument as a friend of the Court. Undertaken at our request, our obligation is none the less if we find ourselves obliged to take a view adverse to his. The strong presentation of arguments against the conclusion of the Court [p177] is of the utmost value in enabling the Court to satisfy itself that it has fully considered all that can be said.
* Maclay shows the vote ten to ten. Journal of William Maclay, 116. John Adams' Diary shows nine to nine. 3 C. F. Adams, Works of John Adams, 412. Ellsworth's name appears in Maclay's list as voting against striking out, but not in that of Adams -- evidently an inadvertence.