|Myers v. United States
58 Ct.Cls. 199, affirmed.
[ Taft ]
[ Holmes ]
[ Mcreynolds ]
[ Brandeis ]
Myers v. United States
APPEAL FROM THE COURT OF CLAIMS
The separate opinion of MR. JUSTICE McREYNOLDS.
The following provisions of the Act making appropriations for the Post Office Department, approved July 12, 1876, (c. 179, 19 Stat. 78, 80), have not been repealed or superseded.
Sec. 5. [That the postmasters shall be divided into four classes based on annual compensation]. . . . Sec. 6. 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, and postmasters of the fourth class shall be appointed and may be removed by the Postmaster General, by whom all appointments and removals shall be notified to the Auditor for the Post Office Department.
The President nominated, and, with consent of the Senate, appointed, Frank S. Myers first-class postmaster at Portland, Ore. for four years, commencing July 21, 1917, and undertook to remove him February 3, 1920. The Senate has never approved the removal. Myers protested, asserted illegality of the order, refused to submit, and was ejected. He sued to recover the prescribed salary for the period between February 3, 1920, and July 21, 1921. Judgment must go against the United States unless the President acted within powers conferred by the Constitution.
May the President oust at will all postmasters appointed with the Senate's consent for definite terms under an Act which inhibits removal without consent of that body? May he approve a statute which creates an inferior office and prescribes restrictions on removal, appoint an incumbent, and then remove without regard to the restrictions? Has he power to appoint to an inferior office for a definite term under an Act which prohibits removal except as therein specified, and then arbitrarily [p179] dismiss the incumbent and deprive him of the emoluments? I think there is no such power. Certainly it is not given by any plain words of the Constitution, and the argument advanced to establish it seems to me forced and unsubstantial.
A certain repugnance must attend the suggestion that the President may ignore any provision of an Act of Congress under which he has proceeded. He should promote, and not subvert, orderly government. The serious evils which followed the practice of dismissing civil officers as caprice or interest dictated, long permitted under congressional enactments, are known to all. It brought the public service to a low estate and caused insistent demand for reform.
Indeed, it is utterly impossible not to feel that, if this unlimited power of removal does exist, it may be made, in the hands of a bold and designing man of high ambition and feeble principles, an instrument of the worst oppression and most vindictive vengeance.
Story on the Constitution, 1539.
During the notable Senate debate of 1835 (Debates, 23d Cong., 2d sess.) experienced statesmen pointed out the very real dangers and advocated adequate restraint, through congressional action, upon the power which statutes then permitted the President to exercise.
Mr. Webster declared (p. 469):
I deem this degree of regulation, at least, necessary unless we are willing to submit all these officers to an absolute and perfectly irresponsible removing power, a power which, as recently exercised, tends to turn the whole body of public officers into partisans, dependants, favorites, sycophants, and man-worshippers.
Mr. Clay asserted (id., 515):
The power of removal, as now exercised, is nowhere in the Constitution expressly recognized. The only mode of displacing a public officer for which it does provide is by impeachment. But it has been argued on this occasion that it is a sovereign power, an inherent power, and an executive power, and therefore [p180] that it belongs to the President. Neither the premises nor the conclusion can be sustained. If they could be, the people of the United States have all along totally misconceived the nature of their government, and the character of the office of their supreme magistrate. Sovereign power is supreme power, and in no instance whatever is there any supreme power vested in the President. Whatever sovereign power is, if there be any, conveyed by the Constitution of the United States, is vested in Congress, or in the President and Senate. The power to declare war, to lay taxes, to coin money, is vested in Congress, and the treaty-making power in the president and Senate. The Postmaster General has the power to dismiss his deputies. Is that a sovereign power, or has he any?
Inherent power! That is a new principle to enlarge the powers of the general government. . . . The partisans of the executive have discovered a third and more fruitful source of power. Inherent power! Whence is it derived? The Constitution created the office of President, and made it just what it is. It had no powers prior to its existence. It can have none but those which are conferred upon it by the instrument which created it, or laws passed in pursuance of that instrument. Do gentlemen mean by inherent power such power as is exercised by the monarchs or chief magistrates of other countries? If that be their meaning, they should avow it.
And Mr. Calhoun argued (id., 553):
Hear what that sacred instrument says: "Congress shall have power . . . to make all laws which shall be necessary and proper for carrying into execution the foregoing powers" (those granted to Congress itself) "and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." Mark the fulness of the expression. Congress shall have [p181] power to make all laws, not only to carry into effect the powers expressly delegated to itself, but those delegated to the government or any department or officer thereof, and, of course, comprehends the power to pass laws necessary and proper to carry into effect the powers expressly granted to the executive department. It follows, of course, to whatever express grant of power to the executive the power of dismissal may be supposed to attach, whether to that of seeing the law faithfully executed, or to the still more comprehensive grant, as contended for by some, vesting executive powers in the President, the mere fact that it is a power appurtenant to another power, and necessary to carry it into effect, transfers it, by the provisions of the Constitution cited, from the executive to Congress, and places it under the control of Congress, to be regulated in the manner which it may judge best.
The long struggle for civil service reform and the legislation designed to insure some security of official tenure ought not to be forgotten. Again and again, Congress has enacted statutes prescribing restrictions on removals and, by approving them, many Presidents have affirmed its power therein.
The following are some of the officers who have been or may be appointed with consent of the Senate under such restricting statutes.
Members of the Interstate Commerce Commission, Board of General Appraisers, Federal Reserve Board, Federal Trade Commission, Tariff Commission, Shipping Board, Federal Farm Loan Board, Railroad Labor Board; officers of the Army and Navy; Comptroller General; Postmaster General and his assistants; postmasters of the first, second and third classes; judge of the United States Court for China; judges of the Court of Claims, established in 1855, the judges to serve "during good behavior"; judges of Territorial (statutory) courts; judges of the [p182] Supreme Court and Court of Appeals for the District of Columbia (statutory courts), appointed to serve "during good behavior." Also members of the Board of Tax Appeals provided for by the Act of February 26, 1926, to serve for 12 years, who
shall be appointed by the President by and with the advice and consent of the Senate solely on the grounds of fitness to perform the duties of the office. Members of the Board may be removed by the President after notice and opportunity for public hearing, for inefficiency, neglect of duty or malfeasance in office but for no other cause.
Every one of these officers, we are now told, in effect, holds his place subject to the President's pleasure or caprice. [n1] And it is further said, that Congress cannot create any office to be filled through appointment by the President with consent of the Senate -- except judges of the Supreme, Circuit and District (constitutional) courts -- and exempt the incumbent from arbitrary dismissal. These questions press for answer, and thus the cause becomes of uncommon magnitude.
Nothing short of language clear beyond serious disputation should be held to clothe the President with authority wholly beyond congressional control arbitrarily to dismiss every officer whom he appoints except a few judges. There are no such words in the Constitution, and the asserted inference conflicts with the heretofore accepted theory that this government is one of carefully enumerated powers under an intelligible charter. "This instrument contains an enumeration of powers expressly granted." Gibbons v. Ogden, 9 Wheat. 1, 187.
Nor should it ever be lost sight of that the government of [p183] the United States is one of limited and enumerated powers, and that a departure from the true import and sense of its powers is pro tanto the establishment of a new Constitution. It is doing for the people what they have not chosen to do for themselves. It is usurping the functions of a legislator, and deserting those of an expounder of the law. Arguments drawn from impolicy or inconvenience ought here to be of no weight. The only sound principle is to declare, ita lex scripta est, to follow, and to obey. Nor, if a principle so just and conclusive could be overlooked, could there well be found a more unsafe guide in practice than mere policy and convenience.
Story on the Constitution, § 426.
If the phrase "executive power" infolds the one now claimed, many others heretofore totally unsuspected may lie there awaiting future supposed necessity, and no human intelligence can define the field of the President's permissible activities. "A masked battery of constructive powers would complete the destruction of liberty."IV.
Constitutional provisions should be interpreted with the expectation that Congress will discharge its duties no less faithfully than the Executive will attend to his. The legislature is charged with the duty of making laws for orderly administration obligatory upon all. It possesses supreme power over national affairs, and may wreck as well as speed them. It holds the purse; every branch of the government functions under statutes which embody its will; it may impeach and expel all civil officers. The duty is upon it "to make all laws which shall be necessary and proper for carrying into execution" all powers of the federal government. We have no such thing as three totally distinct and independent departments; the others must look to the legislative for direction and [p184] support. "In republican government, the legislative authority necessarily predominates." The Federalist, XLVI, XVII. Perhaps the chief duty of the President is to carry into effect the will of Congress through such instrumentalities as it has chosen to provide. Arguments, therefore, upon the assumption that Congress may willfully impede executive action are not important.
The Constitution provides --
Art I, Sec. 1. All legislative powers herein granted shall be vested in a Congress of the United States. . . .
Sec. 2. . . . The House of Representatives . . . shall have the sole power of impeachment.
Sec. 3. . . . The Senate shall have the sole power to try all impeachments. . . .
Sec. 8. The Congress shall have power . . . To establish post offices and post roads; . . . To raise and support armies . . . To provide and maintain a navy; To make rules for the government and regulation of the land and naval forces; . . . To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.
Art. II, Sec. 1. The executive power shall be vested in a President of the United States. . . .
Sec. 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 offenses 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, [p185] 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 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.
Sec. 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.
Art. III, Sec. 1. 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.
Sec. 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority. . . .
For the United States, it is asserted -- Except certain judges, the President may remove all officers, whether executive [p186] or judicial, appointed by him with the Senate's consent, and therein he cannot be limited or restricted by Congress. The argument runs thus -- The Constitution gives the President all executive power of the national government except as this is checked or controlled by some other definite provision; power to remove is executive and unconfined; accordingly, the President may remove at will. Further, the President is required to take care that the laws be faithfully executed; he cannot do this unless he may remove at will all officers whom he appoints; therefore, he has such authority.
The argument assumes far too much. Generally, the actual ouster of an officer is executive action; but to prescribe the conditions under which this may be done is legislative. The act of hanging a criminal is executive; but to say when and where and how he shall be hanged is clearly legislative. Moreover, officers may be removed by direct legislation -- the Act of 1820 hereafter referred to did this.
The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society, while the execution of the laws and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate.
The Federalist, No. LXXIV.
The legislature may create post offices and prescribe qualifications, duties, compensation and term. And it may protect the incumbent in the enjoyment of his term unless in some way restrained therefrom. The real question, therefore, comes to this -- does any constitutional provision definitely limit the otherwise plenary power of Congress over postmasters, when they are appointed by the President with consent of the Senate? The question is not the much-mooted one whether the Senate is part of the appointing power under the Constitution, and therefore must participate in removals. Here, the restriction [p187] is imposed by statute alone, and thereby made a condition of the tenure. I suppose that beyond doubt Congress could authorize the Postmaster General to appoint all postmasters and restrain him in respect of removals.
Concerning the insistence that power to remove is a necessary incident of the President's duty to enforce the laws, it is enough now to say: the general duty to enforce all laws cannot justify infraction of some of them. Moreover, Congress, in the exercise of its unquestioned power, may deprive the President of the right either to appoint or to remove any inferior officer by vesting the authority to appoint in another. Yet, in that event, his duty touching enforcement of the laws would remain. He must utilize the force which Congress gives. He cannot, without permission, appoint the humblest clerk or expend a dollar of the public funds.
It is well to emphasize that our present concern is with the removal of an " inferior officer," within Art. II, Sec. 2, of the Constitution, which the statute positively prohibits without consent of the Senate. This is no case of mere suspension. The demand is for salary, and not for restoration to the service. We are not dealing with an ambassador, public minister, consul, judge or " superior officer." Nor is the situation the one which arises when the statute creates an office without a specified term, authorizes appointment and says nothing of removal. In the latter event, under long-continued practice and supposed early legislative construction, it is now accepted doctrine that the President may remove at pleasure. This is entirely consistent with implied legislative assent; power to remove is commonly incident to the right to appoint when not forbidden by law. But there has never been any such usage where the statute prescribed restrictions. From its first session down to the last one Congress has consistently asserted its power to prescribe conditions concerning the removal of inferior officers. The executive [p188] has habitually observed them, and this Court has affirmed the power of Congress therein. [n2]
Some reference to the history of postal affairs will indicate the complete control which Congress has asserted over them with general approval by the executive.
The Continental Congress (1775) established a post office and made Benjamin Franklin Postmaster General, "with power to appoint such and so many deputies, as to him may seem proper and necessary." Under the Articles of Confederation (1781), Congress again provided for a post office and Postmaster General, with "full power and authority to appoint a clerk, or assistant to himself, and such and so many deputy postmasters as he shall think proper." The first Congress under the Constitution (1789) directed:
That there shall be appointed a Postmaster General; his powers and salary, and the compensation to the assistant or clerk and deputies which he may appoint, and the regulations of the post office shall be the same as they last were under the resolutions and ordinances of the late Congress. The Postmaster General to be subject to the direction of the President of the United States in performing the duties of his office, and in forming contracts for the transportation of the mail.
The Act of 1792 (1 Stat. 232, 234) established certain post roads, prescribed regulations for the Department, [p189] and continued in the Postmaster General sole power of appointment; but it omitted the earlier provision that he should "be subject to the direction of the President of the United States in performing the duties of his office."
The Act of March 2, 1799, provided:
That there be established at the seat of Government of the United States, a General Post Office, under the direction of a Postmaster General. The Postmaster General shall appoint an assistant, and such clerks as may be necessary for performing the business of his office; he shall establish post offices, and appoint postmasters, at all such places as shall appear to him expedient, on the post roads that are or may be established by law.
This provision remained until 1836, and, prior to that time, all postmasters were appointed without designated terms and were subject to removal by the Postmaster General alone.
In 1814, Postmaster General Granger appointed Senator Leib postmaster at Philadelphia contrary to the known wishes of President Madison. Granger was removed; but Leib continued to hold his office.
John Quincy Adams records in his Memoirs (January 5, 1822), that the President
summoned an immediate meeting of the members of the administration, which was fully attended. It was upon the appointment of the postmaster at Albany.
A warm discussion arose with much diversity of opinion concerning the propriety of the Postmaster General's request for the President's opinion concerning the proposed appointment. "The President said he thought it very questionable whether he ought to interfere in the case at all." Some members severely censured the Postmaster General for asking the President's opinion after having made up his own mind, holding it an attempt to shift responsibility.
I said I did not see his conduct exactly in the same light. The law gave the appointment of all the postmasters exclusively [p190] to the Postmaster General, but he himself was removable from his own office at the pleasure of the President. Now, Mr. Granger had been removed with disgrace by President Madison for appointing Dr. Leib postmaster at Philadelphia. Mr. Meigs, therefore, in determining to appoint General Van Renesselaer, not only exercised a right but performed a duty of his office; but, with the example of Mr. Granger's dismission before him, it was quite justifiable in him to consult the President's wish, with the declared intention of conforming to it. I thought I should have done the same under similar circumstances.
Act of July 2, 1836 (5 Stat. 80, 87) --
That there shall be appointed by the President of the United States, by and with the advice and consent of the Senate, a Deputy Postmaster for each post office at which the commissions allowed to the postmaster amounted to one thousand dollars or upwards in the year ending the thirtieth day of June, one thousand eight hundred and thirty-five, or which may, in any subsequent year, terminating on the thirtieth day of June, amount to or exceed that sum, who shall hold his office for the term of four years, unless sooner removed by the President.
This is the first Act which permitted appointment of any postmaster by the President; the first also which fixed terms for them. It was careful to allow removals by the President, which otherwise, under the doctrine of Marbury v. Madison, 1 Cranch 137, would have been denied him. And, by this legislation, Congress itself terminated the services of postmasters who had been appointed to serve at will.
The Act of 1863 (12 Stat. 701) empowered the Postmaster General to appoint and commission all postmasters whose salary or compensation "have been ascertained to be less than one thousand dollars." In 1864, five distinct classes were created (13 Stat. 335), and the Act of 1872 (17 Stat. 292) provided --
That postmasters of the fourth and fifth class shall be appointed and may be removed [p191] by the Postmaster General, and all others 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.
In 1874 (18 Stat. 231, 233) postmasters were divided into four classes according to compensation, and the statute directed that those
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, and postmasters of the fourth class shall be appointed and may be removed by the Postmaster General, by whom all appointments and removals shall be notified to the Auditor for the Post Office Department.
This language reappears in § 6, Act July 12, 1876, supra.
On July 1, 1925, there were 50,957 postmasters; 35,758 were of the fourth class.
For 47 years (1789 to 1836), the President could neither appoint nor remove any postmaster. The Act which first prescribed definite terms for these officers authorized him to do both. Always it has been the duty of the President to take care that the postal laws "be faithfully executed," but there did not spring from this any illimitable power to remove postmasters.
The written argument for the United States by the former Solicitor General avers that it is based on this premise:
The President's supervision of the executive branch of the government, through the necessary power of removal, has always been recognized, and is now recognized, alike by considerations of necessity and the theory of government as an executive power, and is clearly indicated in the text of the Constitution, even though the [p192] power of removal is not expressly granted.
A discourse proceeding from that premise helps only because it indicates the inability of diligent counsel to discover a solid basis for his contention. The words of the Constitution are enough to show that the framers never supposed orderly government required the President either to appoint or to remove postmasters. Congress may vest the power to appoint and remove all of them in the head of a department, and thus exclude them from presidential authority. From 1789 to 1836, the Postmaster General exercised these powers as to all postmasters (Story on the Constitution, § 1536), and the 35,000 in the fourth class are now under his control. For forty years, the President functioned and met his duty to "take care that the laws be faithfully executed" without the semblance of power to remove any postmaster. So I think the supposed necessity and theory of government are only vapors.
Congress has authority to provide for postmasters and prescribe their compensation, terms and duties. It may leave with the President the right to appoint them with consent of the Senate or direct another to appoint. In the latter event, United States v Perkins, 116 U.S. 483, 485, makes it clear that the right to remove may be restricted. But, so the argument runs, if the President appoints with consent of the Senate, his right to remove cannot be abridged, because Art. II of the Constitution vests in him the "executive power," and this includes an illimitable right to remove. The Constitution empowers the President to appoint Ambassadors, other public ministers, consuls, judges of the Supreme Court and superior officers, and no statute can interfere therein. But Congress may authorize both appointment and removal of all inferior officers without regard to the President's wishes -- even in direct opposition to them. This important distinction [p193] must not be overlooked. And consideration of the complete control which Congress may exercise over inferior officers is enough to show the hollowness of the suggestion that a right to remove them may be inferred from the President's duty to "take care that the laws be faithfully executed." He cannot appoint any inferior officer, however humble, without legislative authorization; but such officers are essential to execution of the laws. Congress may provide as many or as few of them as it likes. It may place all of them beyond the President's control; but this would not suspend his duty concerning faithful execution of the laws. Removals, however important, are not so necessary as appointments.
I find no suggestion of the theory that "the executive power" of Art. II, Sec. 1, includes all possible federal authority executive in nature unless definitely excluded by some constitutional provision, prior to the well known House debate of 1789, when Mr. Madison seems to have given it support. A resolution looking to the establishment of an executive department -- Department of Foreign Affairs (afterwards State) -- provided for a secretary, "who shall be appointed by the President by and with the advice and consent of the Senate and to be removable by the President." Discussion arose upon a motion to strike out, "to be removable by the President." The distinction between superior and inferior officers was clearly recognized; also that the proposed officer was superior, and must be appointed by the President with the Senate's consent. The bill prescribed no definite term -- the incumbent would serve until death, resignation or removal. In the circumstances, most of the speakers recognized the rule that, where there is no constitutional or legislative restriction, power to remove is incidental to that of appointment. Accordingly, they thought the [p194] President could remove the proposed officer; but many supposed he must do so with consent of the Senate. They maintained that the power to appoint is joint.
Twenty-four of the fifty-four members spoke and gave their views on the Constitution and sundry matters of expediency. The record fairly indicates that nine, including Mr. Madison, thought the President would have the right to remove an officer serving at will under direct constitutional grant; three thought the Constitution did not, and although Congress might, it ought not to bestow such power; seven thought the Constitution did not, and Congress could, not confer it; five were of opinion that the Constitution did not, but that Congress ought to, confer it. Thus, only nine members said anything which tends to support the present contention, and fifteen emphatically opposed it.
The challenged clause, although twice formally approved, was finally stricken out upon assurance that a new provision (afterwards adopted) would direct disposition of the official records "whenever the said principal officer shall be removed from office by the President of the United States or in any other case of vacancy." This was susceptible of different interpretations, and probably did not mean the same thing to all. The majority said nothing. The result of the discussion and vote was to affirm that the President held the appointing power with a right of negation in the Senate, and that, under the commonly accepted rule, he might remove without concurrence of the Senate when there was no inhibition by Constitution or statute. That the majority did not suppose they had assented to the doctrine under which the President could remove inferior officers contrary to an inhibition prescribed by Congress is shown plainly enough by the passage later in the same session of two Acts containing provisions wholly inconsistent with any such idea. Acts of August 7, 1789, and September 24, 1789, infra. [p195]
Following much discussion of Mr. Madison's motion of May 19, a special committee reported this bill to the House on June 2. Debates upon it commenced June 16 and continued until June 24, when it passed by twenty-nine to twenty-two. The Senate gave it great consideration, commencing June 25, and passed it July 18, with amendments accepted by the House July 20. The Diary of President John Adams (Works 1851 ed. v. 3, p. 412) states that the Senate voted nine to nine, and that the deciding vote was given by the Vice President in favor of the President's power to remove. He also states that Senator Ellsworth strongly supported the bill, and Senator Patterson voted for it. These senators were members of the committee which drafted the Judiciary Bill spoken of below.
It seems indubitable that, when the debate began, Mr. Madison did not entertain the extreme view concerning illimitable presidential power now urged upon us, and it is not entirely clear that he had any very definite convictions on the subject when the discussion ended. Apparently this notion originated with Mr. Vining, of Delaware, who first advanced it on May 19. Considering Mr. Madison's remarks (largely argumentative) as a whole, they give it small, if any, support. Some of them, indeed, are distinctly to the contrary. He was author of the provision that the Secretary shall "be removable by the President"; he thought it "safe and expedient to adopt the clause," and twice successfully resisted its elimination -- May 19 and June 19. He said:
I think it absolutely necessary that the President should have the power of removing from office. . . . On the constitutionality of the declaration, I have no manner of doubt.
He believed they [his opponents] would not assert that any part of the Constitution declared that the only way to remove should be by impeachment; the contrary might be inferred, because Congress may establish offices by law; [p196] therefore, most certainly, it is in the discretion of the legislature to say upon what terms the office shall be held, either during good behavior or during pleasure.
I have, since the subject was last before the House, examined the Constitution with attention, and I acknowledge that it does not perfectly correspond with the ideas I entertained of it from the first glance. . . . I have my doubts whether we are not absolutely tied down to the construction declared in the bill. . . . If the Constitution is silent, and it is a power the legislature have a right to confer, it will appear to the world, if we strike out the clause, as if we doubted the propriety of vesting it in the President of the United States. I therefore think it best to retain it in the bill. [n3] [p197]
Writing to Edmund Randolph, June 17, 1789, Mr. Madison pointed out the precise point of the debate. "A very interesting question is started -- By whom officers appointed during pleasure by the President and Senate are to be displaced." And on June 21, 1789, he advised Edmund Pendleton of the discussion, stated the four opinions held by members, and said:
The last opinion [p198] [the one he held] has prevailed, but is subject to various modifications, by the power of the legislature to limit the duration of laws creating offices, or the duration of the appointments for filling them, and by the power over the salaries and appropriations.
Defending the Virginia Resolutions (of 1798) after careful preparation aided by long experience with national affairs, Mr. Madison emphasized the doctrine that [p199] the powers of the United States are "particular and limited," that the general phrases of the Constitution must not be so expounded as to destroy the particular enumerations explaining and limiting their meaning, and that latitudinous exposition would necessarily destroy the fundamental purpose of the founders. He continued to hold these general views. In his letters, he clearly exposed the narrow point under consideration by the first Congress, also the modification to which his views were subject, and he supported, during the same session, the Judiciary Act and probably the Northwest Territory Act, which contained provisions contrary to the sentiment now attributed to him. It therefore seems impossible to regard what he once said in support of a contested measure as present authority for attributing to the executive those illimitable and undefinable powers which he thereafter reprobated. Moreover, it is the fixed rule that debates are not relied upon when seeking the meaning or effect of statutes.
But if it were possible to spell out of the debate and action of the first Congress on the bill to establish the Department of Foreign Affairs some support for the present claim of the United States, this would be of little real consequence, for the same Congress on at least two occasions took the opposite position, and time and time again subsequent congresses have done the same thing. It would be amazing for this Court to base the interpretation of a constitutional provision upon a single doubtful congressional interpretation when there have been dozens of them extending through a hundred and thirty-five years, which are directly to the contrary effect.
Following the debate of 1789, it became the commonly approved view that the Senate is not a part of the appointing power. Also it became accepted practice that the President might remove at pleasure all officers appointed by him when neither Constitution nor statute [p200] prohibited by prescribing a fixed term or otherwise. Prior to 1820, very few officers held for definite terms; generally they were appointed to serve at pleasure, and Mr. Madison seems always to have regarded this as the proper course. He emphatically disapproved the Act of 1820, which prescribed such terms, and even doubted its constitutionality. Madison's Writings, 1865 ed., vol. 3, p. 196. It was said that
He thought the tenure of all subordinate executive officers was necessarily the pleasure of the chief by whom they were commissioned. If they could be limited by Congress to four years, they might to one -- to a month -- to a day -- and the executive power might thus be annihilated.
Diary, John Quincy Adams, 1875 ed., vol. VII, p. 425.
During the early administrations, removals were infrequent and for adequate reasons. President Washington removed ten officers; President John Adams, eight.
Complying with a Resolution of March 2, 1839, President Van Buren sent to the House of Representatives, March 13, 1840,
a list of all [civil] officers of the Government deriving their appointments from the nomination of the President and concurrence of the Senate whose commissions are recorded in the Department of State and who have been removed from office since the 3rd of March, 1789.
Document No. 132, 26th Cong., 1st Sess. Two hundred and eight had been removed; and, after a somewhat careful survey of the statutes, I think it true to say that not one of these removals had been inhibited by Congress. On the contrary, all were made with it.s consent, either implied from authorization of the appointment for service at pleasure or indicated by express words of the applicable statute. The Act of 1789 authorized appointment of marshals for four years, removable at pleasure. The Act of 1820 established definite terms for many officers, but directed that they "shall be removable from office at pleasure." The Act of 1836 prescribed [p201] fixed terms for certain postmasters and expressly provided for removals by the President.
A summary of the reported officers with commissions in the State Department who were removed, with the number in each class, is in the margin. [n4] The Secretary of the Treasury reported that twenty-four officers in that Department had been removed "since the burning of the Treasury Building in 1833." The Postmaster General reported that thirteen postmasters appointed by the President had been dismissed (prior to 1836 all postmasters were appointed by the Postmaster General; after that time, the President had express permission to dismiss those whom he appointed). Nine Indian Agents were removed. One hundred and thirty-nine commissioned officers of the army and twenty-two of the navy were removed. I find no restriction by Congress on the President's right to remove any of these officers. See Wallace v. United States, 257 U.S. 541.
Prior to the year 1839, no President engaged in the practice of removing officials contrary to congressional direction. [p202] There is no suggestion of any such practice which originated after that date.
Rightly understood, the debate and Act of 1789 and subsequent practice afford no support to the claim now advanced. In Marbury v. Madison, supra, this court expressly repudiated it, and that decision has never been overruled. On the contrary, Shurtleff v. United States, 189 U.S. 311, clearly recognizes the right of Congress to impose restrictions.
Concerning the legislative and practical construction following this debate, Mr. Justice Story wrote (1833):
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. . . . Whether the predictions of the original advocates of the executive power, or those of the opposers of it, are likely, in the future progress of the government, to be realized must be left to the sober judgment of the community and to the impartial award of time. 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 the 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.
Story on the Constitution, §§ 1543, 1544.
Writing in 1826 (*309, 310) Chancellor Kent affirmed:
The Act [the Judiciary Act of September 24, 1789, § 27] [p203] says that the marshal shall be removable at pleasure, without saying by whom, and, on the first organization of the government, it was made a question whether the power of removal, in case of officers appointed to hold at pleasure, resided anywhere but in the body which appointed, and, of course, whether the consent of the Senate was not requisite to remove. This was the construction given to the Constitution while it was pending for ratification before the state conventions, by the author of The Federalist. . . . But the construction which was given to the Constitution by Congress, after great consideration and discussion, was different. In the Act for establishing the Treasury Department, the Secretary was contemplated as being removable from office by the President. The words of the Act are,
That whenever the Secretary shall be removed from office by the President of the United States, or in any other case of vacancy in the office, the assistant shall act,
&c. This amounted to a legislative construction of the Constitution, and it has ever since been acquiesced in and acted upon as of decisive authority in the case. It applies equally to every other officer of government appointed by the President and Senate whose term of duration is not specially declared.
These great expounders had no knowledge of any practical construction of the Constitution sufficient to support the theory here advanced. This court knew nothing of it in 1803 when it decided Marbury v. Madison, and we have the assurance of Mr. Justice McLean (United States v. Guthrie, 17 How. 284, 305) that it adhered to the view there expressed so long as Chief Justice Marshall lived. And neither Calhoun nor Clay nor Webster knew of any such thing during the debate of 1835 when they advocated limitation, by further legislation, of powers granted to the President by the Act of 1820.
If the remedy suggested by Mr. Justice Story and long supposed to be efficacious should prove to be valueless, [p204] I suppose Congress may enforce its will by empowering the courts or heads of departments to appoint all officers except representatives abroad, certain judges and a few "superior" officers -- members of the cabinet. And, in this event, the duty to "take care that the laws be faithfully executed" would remain notwithstanding the President's lack of control. In view of this possibility, under plain provisions of the Constitution, it seems useless, if not, indeed, presumptuous for courts to discuss matters of supposed convenience or policy when considering the President's power to remove.
Congress has long and vigorously asserted its right to restrict removals, and there has been no common executive practice based upon a contrary view. The President has often removed, and it is admitted that he may remove, with either the express or implied assent of Congress; but the present theory is that he may override the declared will of that body. This goes far beyond any practice heretofore approved or followed; it conflicts with the history of the Constitution, with the ordinary rules of interpretation, and with the construction approved by Congress since the beginning and emphatically sanctioned by this court. To adopt it would be revolutionary.
The Articles of Confederation contained no general grant of executive power.
The first constitutions of the States vested in a governor or president, sometimes with and sometimes without a council, "the executive power," "the supreme executive power"; but always in association with carefully defined special grants, as in the federal Constitution itself. They contained no intimation of executive powers except those definitely enumerated or necessarily inferred therefrom or from the duty of the executive to enforce the laws. Speaking in the Convention, July 17, [p205] Mr. Madison said: "The executives of the States are in general little more than cyphers; the legislatures omnipotent."
In the proceedings of the Constitutional Convention, no hint can be found of any executive power except those definitely enumerated or inferable therefrom or from the duty to enforce the laws. In the notes of Rufus King (June 1) upon the Convention, this appears --
Wilson -- an extive. ought to possess the powers of secresy, vigour & Dispatch -- and to be so constituted as to be responsible -- Extive. powers are designed for the execution of Laws, and appointing Officers not otherwise to be appointed -- if appointments of Officers are made by a sing. Ex he is responsible for the propriety of the same. Not so where the Executive is numerous.
Mad: agrees wth. Wilson in his definition of executive powers executive powers ex vi termini, do not include the Rights of war & peace &c. but the powers shd. be confined and defined -- if large we shall have the Evils of elective Monarchies -- probably the best plan will be a single Executive of long duration wth. a Council, with liberty to depart from their Opinion at his peril -- .
Farrand, Records Fed. Con. v. I, p. 70.
If the Constitution or its proponents had plainly avowed what is now contended for, there can be little doubt that it would have been rejected.
The Virginia plan, when introduced, provided --
That a national executive be instituted, to be chosen by the national legislature for the term of years, to receive punctually at stated times a fixed compensation for the services rendered, in which no increase or diminution shall be made so as to affect the magistracy existing at the time of increase or diminution, and to be ineligible a second time, and that besides a general authority to execute the national laws, it ought to enjoy the executive rights vested in Congress by the Confederation. [p206]
That the executive and a convenient number of the national judiciary ought to compose a council of revision with authority to examine every act of the national legislature before it shall operate, and every act of a particular legislature before a negative thereon shall be final, and that the dissent of the said council shall amount to a rejection unless the act of the national legislature be again passed, or that of a particular legislature be again negatived by ___ of the members of each branch.
This provision was discussed and amended. When reported by the Committee of the Whole and referred to the Committee on Detail, June 13, it read thus --
Resolved, That a national executive be instituted to consist of a single person, to be chosen by the national legislature for the term of seven years, with power to carry into execution the national laws, to appoint to offices in cases not otherwise provided for -- to be ineligible a second time, and to be removable on impeachment and conviction of malpractices or neglect of duty -- to receive a fixed stipend by which he may be compensated for the devotion of his time to public service to be paid out of the national treasury. That the national executive shall have a right to negative any legislative act which shall not be afterwards passed unless by two-thirds of each branch of the national legislature.
The Committee on Detail reported: "Sec. 1. The executive power of the United States shall be vested in a single person," etc. This was followed by Sec. 2 with the clear enumeration of the President's powers and duties. Among them were these:
He shall from time to time give information to the Legislature of the state of the Union. . . . He shall take care that the laws of the United States be duly and faithfully executed. . . . He shall receive ambassadors. . . . He shall be commander-in-chief of the Army and Navy.
Many of these [p207] were taken from the New York Constitution. After further discussion, the enumerated powers were somewhat modified and others were added, among them (September 7), the power " to call for the opinions of the heads of departments, in writing."
It is beyond the ordinary imagination to picture forty or fifty capable men, presided over by George Washington, vainly discussing, in the heat of a Philadelphia summer, whether express authority to require opinions in writing should be delegated to a President in whom they had already vested the illimitable executive power here claimed.
The New Jersey plan --
That the United States in Congress be authorized to elect a federal executive to consist of ___ persons, to continue in office for the term of ___ years, to receive punctually at stated times a fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons composing the executive at the time of such increase or diminution, to be paid out of the federal treasury; to be incapable of holding any other office or appointment during their time of service and for ___ years thereafter; to be ineligible a second time, and removable by Congress on application by a majority of the executives of the several States; that the executives, besides their general authority to execute the federal acts, ought to appoint all federal officers not otherwise provided for, and to direct all military operations; provided that none of the persons composing the federal executive shall on any occasion take command of any troops, so as personally to conduct any enterprise as general or in other capacity.
The sketch offered by Mr. Hamilton --
The supreme executive authority of the United States to be vested in a governor to be elected to serve during good behavior -- the election to be made by electors chosen by the people in the election districts aforesaid -- the authorities [p208] and functions of the executive to be as follows: to have a negative on all laws about to be passed, and the execution of all laws passed; to have the direction of war when authorized or begun; to have with the advice and approbation of the Senate the power of making all treaties; to have the sole appointment of the heads or chief officers of the departments of Finance, War and Foreign Affairs; to have the nomination of all other officers (ambassadors to foreign nations included) subject to the approbation or rejection of the Senate; to have the power of pardoning all offences except treason, which he shall not pardon without the approbation of the Senate.
The Federalist, Article LXXVI by Mr. Hamilton, says:
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. Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the government. [p209]
Since the debate of June, 1789, Congress has repeatedly asserted power over removals; this court has affirmed the power, and practices supposed to be impossible have become common.
Mr. Madison was much influenced by supposed expediency, the impossibility of keeping the Senate in constant session, etc.; also the extraordinary personality of the President. He evidently supposed it would become common practice to provide for officers without definite terms, to serve until resignation, death or removal. And this was generally done until 1820. The office under discussion was a superior one, to be filled only by Presidential appointment. He assumed as obviously true things now plainly untrue, and was greatly influenced by them. He said --
The danger then consists merely in this: the President can displace from office a man whose merits require that he should be continued in it. What will be the motives which the President can feel for such abuse of his power, and the restraints that operate to prevent it? In the first place, he will be impeachable by this House, before the Senate for such an act of maladministration, for I contend that the wanton removal of meritorious officers would subject him to impeachment and removal from his own high trust. But what can be his motives for displacing a worthy man? It must be that he may fill the place with an unworthy creature of his own. . . . Now if this be the case with an hereditary monarch, possessed of those high prerogatives and furnished with so many means of influence, can we suppose a President, elected for four years only, dependent upon the popular voice, impeachable by the legislature, little, if at all, distinguished for wealth, personal talents, or influence from the head of the department himself; I say, will he bid defiance to all these considerations and wantonly dismiss a meritorious and virtuous officer? [p210] Such abuse of power exceeds my conception. If anything takes place in the ordinary course of business of this kind, my imagination cannot extend to it on any rational principle.
We face as an actuality what he thought was beyond imagination, and his argument must now be weighed accordingly. Evidently the sentiments which he then apparently held came to him during the debate, and were not entertained when he left the Constitutional Convention, nor during his later years. It seems fairly certain that he never consciously advocated the extreme view now attributed to him by counsel. His clearly stated exceptions to what he called the prevailing view and his subsequent conduct repel any such idea.
By an Act approved August 7, 1789, (c. 8, 1 Stat. 50, 53) Congress provided for the future government of the Northwest Territory, originally organized by the Continental Congress. This statute directed:
The President shall nominate and by and with the advice and consent of the Senate shall appoint all officers which by the said ordinance were to have been appointed by the United States in Congress assembled, and all officers so appointed shall be commissioned by him, and 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.
The ordinance of 1787 authorized the appointment by Congress of a Governor "whose commission shall continue in force for the term of three years unless sooner revoked by Congress," a secretary "whose commission shall continue in force for four years unless sooner revoked," and three judges whose "commissions shall continue in force during good behavior." These were not constitutional judges. American Insurance Co. v. Canter, 1 Pet. 511. Thus, Congress, at its first session, inhibited removal of judges [p211] and assented to removal of the first civil offices for whom it prescribed fixed terms. It was wholly unaware of the now-supposed construction of the Constitution which would render these provisions improper. There had been no such construction; the earlier measure and debate related to an officer appointed by legislative consent to serve at will and whatever was said must be limited to that precise point.
On August 18, 1789, the President nominated, and on the twentieth the Senate "did advise and consent" to the appointment of, the following officers for the Territory: Arthur St. Clair, Governor; Winthrop Sargent, Secretary; Samuel Holden Parsons, John Cleves Symmes and William Barton, judges of the court.
The bill for the Northwest Territory was a House measure, framed and presented July 16, 1789, by a special committee of which Mr. Sedgwick of Massachusetts was a member, and passed July 21 without roll call. The Senate adopted it August 4. The debate on the bill to create the Department of Foreign Affairs must have been fresh in the legislative mind, and it should be noted that Mr. Sedgwick had actively supported the power of removal when that measure was up.
The Act of September 24, 1789 (c. 20, § 27, 1 Stat. 73, 87), provided for another civil officer with fixed term.
A marshal shall be appointed in and for each district for the term of four years, but shall be removable from office at pleasure, whose duty it shall be,
etc. This Act also provided for district attorneys and an Attorney General without fixed terms, and said nothing of removal. The legislature must have understood that, if an officer be given a fixed term and nothing is said concerning removal, he acquires a vested right to the office for the full period; also that officers appointed without definite terms were subject to removal by the President at will, assent of Congress being implied. [p212]
This bill was a Senate measure, prepared by a committee of which Senators Ellsworth and Paterson were members and introduced June 12. It was much considered between June 22 and July 17, when it passed the Senate fourteen to six. During this same period, the House bill to create the Department of Foreign Affairs was under consideration by the Senate, and Senators Ellsworth and Paterson both gave it support. The Judiciary bill went to the House July 20, and there passed September 17. Mr. Madison supported it.
If the theory of illimitable executive power now urged is correct, then the Acts of August 7 and September 24 contained language no less objectionable than the original phrase in the bill to establish the Department of Foreign Affairs over which the long debate arose. As nobody objected to the provisions concerning removals and life tenure in the two later Acts, it seems plain enough that the first Congress never entertained the constitutional views now advanced by the United States. As shown by Mr. Madison's letter to Edmund Randolph, supra, the point under discussion was the power to remove officers appointed to serve at will. Whatever effect is attributable to the action taken must be confined to such officers.
Congress first established courts in the District of Columbia by the Act of February 27, 1801, c. 15, 2 Stat. 103. This authorized three judges to be appointed by the President with consent of the Senate "to hold their respective offices during good behavior." The same tenure has been bestowed on all subsequent superior District of Columbia judges. The same Act also provided for a marshal, to serve during four years, subject to removal at pleasure; for a district attorney without definite term, and
such number of discreet persons to be justices of the peace as the President of the United States shall from time to time think expedient, to [p213] continue in office five years.
Here, again, Congress undertook to protect inferior officers in the District from executive interference, and the same policy has continued down to this time. (See Act of February 9, 1893, c. 74, 27 Stat. 434.)
The Acts providing "for the government of the Territory of the United States south of the River Ohio" (1790), and for the organization of the Territories of Indiana (1800), Illinois (1809), and Michigan (1805), all provided that the government should be similar to that established by the ordinance of 1787, for the Northwest Territory. Judges for the Northwest Territory were appointed for life.
The Act establishing the territorial government of Wisconsin (1836) directed:
That the judicial power of the said Territory shall be vested in a supreme court, district courts, probate courts, and in justices of the peace. The supreme court shall consist of a chief justice and two associate judges, any two of whom shall be a quorum, and who shall hold a term at the seat of government of the said Territory annually, and they shall hold their offices during god behaviour.
The organization Acts for the territories of Louisiana (1804), Iowa (1838), Minnesota (1849), New Mexico (1850), Utah (1850), North Dakota (1861), Nevada (1861), Colorado (1861), and Arizona (1863), provided for judges " to serve for four years." Those for the organization of Oregon (1848), Washington (1853), Kansas (1854), Nebraska (1854), Idaho (1863), Montana (1864), Alaska (1884), Indian Territory (1889), and Oklahoma (1890), provided for judges "to serve for four years, and until their successors shall be appointed and qualified." Those for Missouri (1812), Arkansas (1819), Wyoming (1868), Hawaii (1900), and Florida (1822), provided that judges should be appointed to serve "four years unless sooner removed;" "four years unless sooner removed by [p214] the President;" "four years unless sooner removed by the President with the consent of the Senate of the United States;" "who shall be citizens of the Territory of Hawaii and shall be appointed by the President of the United States, by and with the advice and consent of the Senate of the United States, and may be removed by the President;" "for the term of four years and no longer."
May 15, 1820, President Monroe approved the first general tenure of office Act, c. 102, 3 Stat. 582. If directed --
All district attorneys, collectors of the customs, naval officers and surveyors of the customs, navy agents, receivers of public moneys for lands, registers of the land offices, paymasters in the army, the apothecary general, the assistant apothecaries general, and the commissary general of purchases, to be appointed under laws of the United States, shall be appointed for the term of four years, but shall be removable from office at pleasure. [Prior to this time, these officers were appointed without term to serve at will.]
Sec. 2. . . . The commission of each and every of the officers named in the first section of this Act, now in office, unless vacated by removal from office, or otherwise, shall cease and expire in the manner following: all such commissions, bearing date on or before the thirtieth day of September, one thousand eight hundred and fourteen, shall cease and expire on the day and month of their respective dates, which shall next ensue after the thirtieth day of September next; all such commissions, bearing date after the said thirtieth day of September, in the year one thousand eight hundred and fourteen, and before the first day of October, one thousand eight hundred and sixteen, shall cease and expire on the day and month of their respective dates, which shall next ensue after the thirtieth day of September, one thousand eight hundred and twenty-one. And all other such commissions shall cease [p215] and expire at the expiration of the term of four years from their respective dates.
Thus, Congress not only asserted its power of control by prescribing terms and then giving assent to removals, but it actually removed officers who were serving at will under presidential appointment with consent of the Senate. This seems directly to conflict with the notion that removals are wholly executive in their nature.
The claim advanced for the United States is supported by no opinion of this court, and conflicts with Marbury v. Madison (1803), supra, concurred in by all, including Mr. Justice Paterson, who was a conspicuous member of the Constitutional Convention and, as Senator from New Jersey, participated in the debate of 1789 concerning the power to remove and supported the bill to establish the Department of Foreign Affairs.
By an original proceeding here, Marbury sought a mandamus requiring Mr. Madison, then Secretary of State, to deliver a commission signed by President Adams which showed his appointment (under the Act of February 27, 1801) as Justice of the Peace for the District of Columbia, "to continue in office five years." The Act contained no provision concerning removal. [n5] As required by the circumstances, the court first considered Marbury's right to demand the commission, and affirmed it. Mr. Chief Justice Marshall said --
It is, therefore, decidedly the opinion of the court, that, when a commission has been signed by the President, [p216] the appointment is made, and that the commission is complete when the seal of the United States has been affixed to it by the Secretary of State.
Where an officer is removable at the will of the executive, the circumstance which completes his appointment is of no concern; because the act is at any time revocable, and the commission may be arrested if still in the office. But when the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled. It has conferred legal rights which cannot be resumed.
The discretion of the executive is to be exercised until the appointment has been made. But having once made the appointment, his power over the office is terminated in all cases, where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it.
Mr. Marbury, then, since his commission was signed by the President and sealed by the Secretary of State, was appointed, and, as the law creating the office gave the officer a right to hold 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. [This freedom from executive interference had been affirmed by Representative Bayard in February, 1802, during the debate on repeal of the Judiciary Act of 1801.]
To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right.
The office of justice of peace in the District of Columbia is such an office [of trust, honor, or profit]. . . . It has been created by special Act of Congress, and has been secured, so far as the laws can give security, to the person appointed to fill it, for five years. . . . [p217]
It is, then, the opinion of the court -- 1st. that, by signing the commission of Mr. Marbury, the President of the United States appointed him a justice of peace for the County of Washington, in the District of Columbia, and that the seal of the United States, affixed thereto by the Secretary of State, is conclusive testimony of the verity of the signature, and of the completion of the appointment, and that the appointment conferred on him a legal right to the office for the space of five years.
It has already been stated that the applicant has, to that commission, a vested legal right of which the executive cannot deprive him. He has been appointed to an office from which he is not removable at the will of the executive, and being so appointed, he has a right to the commission which the Secretary has received from the President for his use.
The point thus decided was directly presented and essential to proper disposition of the cause. If the doctrine now advanced had been approved, there would have been no right to protect, and the famous discussion and decision of the great constitutional question touching the power of the court to declare an Act of Congress without effect would have been wholly out of place. The established rule is that doubtful constitutional problems must not be considered unless necessary to determination of the cause. The sometime suggestion that the Chief Justice indulged an obiter dictum is without foundation. The court must have appreciated that, unless it found Marbury had the legal right to occupy the office irrespective of the President's will, there would be no necessity for passing upon the much-controverted and far-reaching power of the judiciary to declare an Act of Congress without effect. In the circumstances then existing, it would have been peculiarly unwise to consider the second and more important question without first demonstrating the necessity therefor by ruling upon the first. Both points [p218] were clearly presented by the record, and they were decided in logical sequence. Cooley's Constitutional Limitations, 7th ed., 231. [n6]
But, assuming that it was unnecessary in Marbury v. Madison to determine the right to hold the office, nevertheless this Court deemed it essential and decided it. I cannot think this opinion is less potential than Mr. Madison's argument during a heated debate concerning an office without prescribed tenure.
This opinion shows clearly enough why Congress, when it directed appointment of marshals for definite terms by the Act of 1789, also took pains to authorize their removal. The specification of a term, without more, would have prevented removals at pleasure.
We are asked by the United States to treat the definite holding in Marbury v. Madison that the plaintiff was not subject to removal by the President at will as mere dictum -- to disregard it. But a solemn adjudication by this Court may not be so lightly treated. For a hundred and twenty years, that case has been regarded as among the most important ever decided. It lies at the very foundation of our jurisprudence. Every point determined was deemed essential, and the suggestion of dictum, either idle or partisan exhortation, ought not to be tolerated. The point here involved was directly passed upon by the great Chief Justice, and we must accept the result unless prepared to express direct disapproval and exercise the transient power which we possess to overrule our great predecessors -- the opinion cannot be shunted.
At the outset, it became necessary to determine whether Marbury had any legal right which could, prima facie at least, create a justiciable or actual case arising under the laws of the United States. Otherwise, there would have [p219] been nothing more than a moot cause; the proceeding would have been upon an hypothesis, and he would have shown no legal right whatever to demand an adjudication on the question of jurisdiction and constitutionality of the statute. The court proceeded upon the view that it would not determine an important and far-reaching constitutional question unless presented in a properly justiciable cause by one asserting a clear legal right susceptible of protection. It emphatically declared, not by way of argument or illustration, but as definite opinion, that the appointment of Marbury "conferred on him a legal right to the office for the space of five years," beyond the President's power to remove; and, plainly on this premise, it thereupon proceeded to consider the grave constitutional question. Indeed, if Marbury had failed to show a legal right to protect or enforce, it could be urged that the decision as to invalidity of the statute lacked force as a precedent because rendered upon a mere abstract question raised by a moot case. The rule has always been cautiously to avoid passing upon important constitutional questions unless some controversy properly presented requires their decision.
The language of Mr. Justice Matthews in Liverpool, etc., Steamship Co. v. Commissioners of Emigration, 113 U.S. 33, 39, is pertinent --
If, on the other hand, we should assume the plaintiff's case to be within the terms of the statute, we should have to deal with it purely as an hypothesis, and pass upon the constitutionality of an Act of Congress as an abstract question. That is not the mode in which this court is accustomed or willing to consider such questions. It has no jurisdiction to pronounce any statute, either of a State or of the United States, void because irreconcilable with the Constitution except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two [p220] rules, to which it has rigidly adhered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other, never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. These rules are safe guides to sound judgment. It is the dictate of wisdom to follow them closely and carefully.
Also the words of Mr. Justice Brewer in Union Pacific Co. v. Mason City Co., 199 U.S. 160, 166 --
Of course, where there are two grounds, upon either of which the judgment of the trial court can be rested, and the appellate court sustains both, the ruling on neither is obiter, but each is the judgment of the court and of equal validity with the other. Whenever a question fairly arises in the course of a trial, and there is a distinct decision of that question, the ruling of the court in respect thereto can in no just sense be called mere dictum. Railroad Companies v. Schutte, 103 U.S. 118, in which this court said (p. 143):
It cannot be said that a case is not authority on the point because, although that point was properly presented and decided in the regular course of the consideration of the cause, something else was found in the end which disposed of the whole matter. Here, the precise question was properly presented, fully argued and elaborately considered in the opinion. The decision on this question was as much a part of the judgment of the court as was that on any other of the several matters on which the case as a whole depended.
And see Chicago, etc., Railway Co. v. Wellman, 143 U.S. 339, 345; United States v. Chamberlin, 219 U.S. 250, 262; United States. v. Title Insurance Co., 265 U.S. 472, 486; Watson v. St. Louis, etc., Ry. Co., 169 Fed. 942, 944, 945.
Although he was intensely hostile to Marbury v. Madison, and refused to recognize it as authoritative, I do not find that Mr. Jefferson ever controverted the view [p221] that an officer duly appointed for a definite time, without more, held his place free from arbitrary removal by the President. If there had been any generally accepted opinion or practice under which he could have dismissed such an officer, as now claimed, that cause would have been a rather farcical proceeding with nothing substantial at issue, since the incumbent could have been instantly removed. And, assuming such doctrine, it is hardly possible that Mr. Jefferson would have been ignorant of the practical way to end the controversy -- a note of dismissal or removal. Evidently he knew nothing of the congressional interpretation and consequent practice here insisted on. And this notwithstanding Mr. Madison sat at his side.
Mr. Jefferson's letters to Spencer Roane (1819) and George Hay (1807) give his views.
In the case of Marbury and Madison, the federal judges declared that commissions, signed and sealed by the President, were valid although not delivered. I deemed delivery essential to complete a deed, which, as long as it remains in the hands of the party, is as yet no deed, it is in posse only, but not in esse, and I withheld delivery of the commissions.
I think it material to stop citing Marbury v. Madison as authority and have it denied to be law.
1. Because the judges, in the outset, disclaimed all cognizance of the case, although they then went on to say what would have been their opinion, had they had cognizance of it. This, then, was confessedly an extrajudicial opinion. and, as such, of no authority. 2. Because, had it been judicially pronounced, it would have been against law; for to a commission, a deed, a bond, delivery is essential to give validity. Until, therefore, the commission is delivered out of the hands of the executive and his agents, it is not his deed.
The judges did not disclaim all cognizance of the cause they were called upon to determine the question [p222] irrespective of the result reached -- and, whether rightly or wrongly, they distinctly held that actual delivery of the commission was not essential. That question does not now arise -- here the commission was delivered and the appointee took office.
Ex parte Mennen (1839), 13 Peters 230, 258, involved the power of a United States District Judge to dismiss at will the clerk whom he had appointed. Mr. Justice Thompson said --
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 behaviour. But no tenure is fixed for the office of clerks. Congress has by law limited the tenure of certain officers to the term of four years, 3 Story, 1790; but expressly providing that the officers shall, within that term, be removable at pleasure; which, of course, is without requiring any cause for such removal. The clerks of courts are not included within this law, and there is no express limitation in the Constitution, or laws of Congress, upon the tenure of the office.
All offices, the tenure of which is not fixed by the Constitution or limited by law, must be held either during good behavior or (which is the same thing in contemplation of law) during the life of the incumbent; or must be held at the will and discretion of some department of the government, and subject to removal at pleasure.
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 [p223] 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. . . .
It would be a most extraordinary construction of the law that all these offices were to be held during life, which must inevitably follow unless the incumbent was removable at the discretion of the head of the department: the President has certainly no power to remove. These clerks fall under that class of inferior officers the appointment of which the Constitution authorizes Congress to vest in the head of the department. The same rule as to the power of removal must be applied to offices where the appointment is vested in the President alone. The nature of the power, and the control over the officer appointed, does not at all depend on the source from which it emanates. The execution of the power depends upon the authority of law, and not upon the agent who is to administer it. And the Constitution has authorized Congress, in certain cases, to vest this power in the President alone, in the Courts of law, or in the heads of departments, and all inferior officers appointed under each, by authority of law, must hold their office at the discretion [p224] of the appointing power. Such is the settled usage and practical construction of the Constitution and laws under which these offices are held.
United States v. Guthrie (1854), 17 How. 284. Goodrich had been removed from the office of Chief Justice of the Supreme Court, Territory of Minnesota, to which he had been appointed to serve "during the period of four years." He sought to recover salary for the time subsequent to removal through a mandamus to the Secretary of the Treasury. The court held this was not a proper remedy, and did not consider whether the President had power to remove a territorial judge appointed for a fixed term. The reported argument of counsel is enlightening; the dissenting opinion of Mr. Justice McLean is important. He points out that only two territorial judges had been removed -- the plaintiff Goodrich, in 1851, and William Trimble, May 20, 1830. The latter was judge of the Superior Court of the Territory of Arkansas, appointed to "continue in office for the term of four years, unless sooner removed by the President."
United States v. Bigler, Fed. Cases, 14481 (1867). This opinion contains a valuable discussion of the general doctrine here involved.
United States v. Perkins (1886), 116 U.S. 483, 485, held 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 so appointed.
McAllister v. United States (1891), 141 U.S. 174. Plaintiff was appointed District Judge for Alaska
for the term of four years from the day of the date hereof, and until his successor shall be appointed and qualified, subject [p225] to the conditions prescribed by law.
He was suspended, and the Senate confirmed his successor. He sought to recover salary for the time between his removal and qualification of his successor. Section 1768, R.S., authorized the President to suspend civil officers "except judges of the courts of the United States." This court reviewed the authorities and pointed out that judges of territorial courts were not judges of courts of the United States within § 1768, and, accordingly, were subject to suspension by the President as therein provided. This argument would have been wholly unnecessary if the theory now advanced, that the President has illimitable power to remove, had been approved.
In an elaborate dissent, Mr. Justice Field, Mr. Justice Gray, and Mr. Justice Brown expressed the view that it was beyond the President's power to remove the judge of any court during the term for which appointed. They necessarily repudiated the doctrine of illimitable power.
Parsons v. United States (1897), 167 U.S. 324, 343. After a review of the history and cases supposed to be apposite, this court, through Mr. Justice Peckham, held that the President had power to remove Parsons from the office of District Attorney, to which he had been appointed "for the term of four years from the date hereof, subject to the conditions prescribed by law."
We are satisfied that its [Congress'] intention in the repeal of the Tenure of Office sections of the Revised Statutes was again to concede to the President the power of removal if taken from him by the original Tenure of Office Act, and, by reason of the repeal, to thereby enable him to remove an officer when, in his discretion, he regards it for the public good, although the term of office may have been limited by the words of the statute creating the office.
He referred to the Act of 1820 and suggested that the situation following it had been renewed by repeal of the Tenure of Office Act. [p226]
The opinion does express the view that, by practical construction prior to 1820, the President had power to remove an officer appointed for a fixed term; but this is a clear mistake. In fact, no removals of such duly commissioned officers were made prior to 1820, and Marbury v. Madison expressly affirms that this could not lawfully be done. The whole discussion in Parsons' case was futile if the Constitution conferred upon the President illimitable power to remove. It was pertinent only upon the theory that, by apt words, Congress could prohibit removals, and this view was later affirmed by Mr. Justice Peckham in Shurtleff v. United States. Apparently he regarded the specification of a definite term as not equivalent to positive inhibition of removal by Congress.
Reagan v. United States (1901), 182 U.S. 419, 425. Reagan, a Commissioner of the United States Court in Indian Territory, was dismissed by the judge, and sued to recover salary. He claimed that the judge's action was invalid because the cause assigned therefor was not one of those prescribed by law. This court, by Mr. Chief Justice Fuller, said:
The inquiry is, therefore, whether there were any causes of removal prescribed by law, March 1, 1895, or at the time of removal. If there were, then the rule would apply that, where causes of removal are specified by constitution or statute, as also where the the term of office is for a fixed period, notice and hearing are essential. If there were not, the appointing power could remove at pleasure or for such cause as it deemed sufficient. . . . The commissioners hold office neither for life nor for any specified time, and are within the rule which treats the power of removal as incident to the power of appointment unless otherwise provided. By chapters forty-five and forty-six, justices of the peace, on conviction of the offences enumerated, are removable from office, but these necessarily do not [p227] include all causes which might render the removal of commissioners necessary or advisable. Congress did not provide for the removal of commissioners for the causes for which justices of the peace might be removed, and if this were to be ruled otherwise by construction, the effect would be to hold the commissioners in office for life unless some of those specially enumerated causes became applicable to them. We agree with the Court of Claims that this would be a most unreasonable construction, and would restrict the power of removal in a manner which there is nothing in the case to indicate could have been contemplated by Congress.
Shurtleff v. United States (1903), 189 U.S. 311, 313. The plaintiff sought to recover his salary as General Appraiser. He was appointed to that office without fixed term, with consent of the Senate, and qualified July 24, 1890. The Act creating the office provided that the incumbents
shall not be engaged in any other business, avocation or employment, and may be removed from office at any time by the President for inefficiency, neglect of duty or malfeasance in office.
Shurtleff was dismissed May 3, 1899, without notice or charges and without knowledge of the reasons for the President's action. Through Mr. Justice Peckham, the court said:
There is, of course, no doubt of the power of Congress to create such an office as is provided for in the above section. Under the provision that the officer might be removed from office at any time for inefficiency, neglect of duty, or malfeasance in office, we are of opinion that, if the removal is sought to be made for those causes, or either of them, the officer is entitled to notice and a hearing. Reagan v. United States, 182 U.S. 419, 425. . . . The appellant contends that, because the statute specified certain causes for which the officer might be removed, it thereby impliedly excluded and denied the right to remove for any other cause, and that the President was [p228] therefore by the statute prohibited from any removal excepting for the causes, or some of them, therein defined. The maxim expressio unius est exclusio alterius is used as an illustration of the principle upon which the contention is founded. We are of opinion that, as thus used, the maxim does not justify the contention of the appellant. We regard it as inapplicable to the facts herein. The right of removal would exist if the statute had not contained a word upon the subject. It does not exist by virtue of the grant, but it inheres in the right to appoint, unless limited by Constitution or statute. It requires plain language to take it away.
The distinct recognition of the right of Congress to require notice and hearing if removal were made for any specified cause is, of course, incompatible with the notion that the President has illimitable power to remove. And it is well to note the affirmation that the right of removal inheres in the right to appoint.
If the framers of the Constitution had intended "the executive power," in Art. II, Sec. 1, to include all power of an executive nature, they would not have added the carefully defined grants of Sec. 2. They were scholarly men, and it exceeds belief
that the known advocates in the Convention for a jealous grant and cautious definition of federal powers should have silently permitted the introduction of words and phrases in a sense rendering fruitless the restrictions and definitions elaborated by them.
Why say, the President shall be commander-in-chief; may require opinions in writing of the principal officers in each of the executive departments; shall have power to grant reprieves and pardons; shall give information to Congress concerning the state of the union; shall receive ambassadors; shall take care that the laws be faithfully executed -- if all of these things and more had already [p229] been vested in him by the general words? The Constitution is exact in statement. Holmes v. Jennison, 14 Pet. 540. That the general words of a grant are limited when followed by those of special import is an established canon, and an accurate writer would hardly think of emphasizing a general grant by adding special and narrower ones without explanation. "An affirmative grant of special powers would be absurd, as well as useless, if a general authority were intended." Story on the Constitution, § 448. "The powers delegated by the proposed Constitution to the federal government are few and defined." Federalist, No. XLIV.
Affirmative words are often, in their operation, negative of other objects than those affirmed, and in this case, a negative or exclusive sense must be given to them, or they have no operation at all. It cannot be presumed that any clause in the Constitution is intended to be without effect; and, therefore, such a construction is inadmissible, unless the words require it.
Marbury v. Madison, p. 174.
In his address to the Senate (February 16, 1835) on "The Appointing and Removing Power," Mr. Webster considered and demolished the theory that the first section of Art. II conferred all executive powers upon the President except as therein limited -- Webster's Works (Little, B. & Co., 1866), vol. 4, pp. 179, 186; Debates of Congress -- and showed that the right to remove must be regarded as an incident to that of appointment. He pointed out the evils of uncontrolled removals and, I think, demonstrated that the claim of illimitable executive power here advanced has no substantial foundation. The argument is exhaustive, and ought to be conclusive. A paragraph from it follows:
It is true that the Constitution declares that the executive power shall be vested in the President; but the first question which then arises is what is executive power? What is the degree, and what are the limitations? Executive power is not a [p230] thing so well known, and so accurately defined, as that the written constitution of a limited government can be supposed to have conferred it in the lump. What is executive power? What are its boundaries? What model or example had the framers of the Constitution in their minds when they spoke of "executive power"? Did they mean executive power as known in England, or as known in France, or as known in Russia? Did they take it as defined by Montesquieu, by Burlamaqui, or by De Lolme? All these differ from one another as to the extent of the executive power of government. What, then, was intended by "the executive power"? Now, Sir, I think it perfectly plain and manifest that, although the framers of the Constitution meant to confer executive power on the President, yet they meant to define and limit that power, and to confer no more than they did thus define and limit. When they say it shall be vested in a President, they mean that one magistrate, to be called a President, shall hold the executive authority; but they mean, further, that he shall hold this authority according to the grants and limitations of the Constitution itself.
Article I provides: "All legislative powers herein granted, shall be vested in a Congress," etc. I hardly suppose, if the words "herein granted" had not been inserted, Congress would possess all legislative power of Parliament, or of some theoretical government, except when specifically limited by other provisions. Such an omission would not have overthrown the whole theory of a government of definite powers and destroyed the meaning and effect of the particular enumeration which necessarily explains and limits the general phrase. When this Article went to the Committee on Style, it provided: "The legislative power shall be vested in a Congress," [p231] etc. The words "herein granted" were inserted by that committee September 12, and there is nothing whatever to indicate that anybody supposed this radically changed what already had been agreed upon. The same general form of words was used as to the legislative, executive and judicial powers in the draft referred to the Committee on Style. The difference between the reported and final drafts was treated as unimportant.
"That the government of the United States is one of delegated, limited and enumerated powers," and "that the federal government is composed of powers specifically granted, with the reservation of all others to the States or to the people," are propositions which lie at the beginning of any effort rationally to construe the Constitution. Upon the assumption that the President, by immediate grant of the Constitution, is vested with all executive power without further definition or limitation, it becomes impossible to delimit his authority, and the field of federal activity is indefinitely enlarged. Moreover, as the Constitution authorizes Congress
to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof,
it likewise becomes impossible to ascertain the.extent of congressional power. Such a situation would be intolerable, chaotic indeed.
If it be admitted that the Constitution by direct grant vests the President with all executive power, it does not follow that he can proceed in defiance of congressional action. Congress, by clear language, is empowered to make all laws necessary and proper for carrying into execution powers vested in him. Here, he was authorized only to appoint an officer of a certain kind, for a certain period, removable only in a certain way. He undertook to proceed under the law so far as agreeable, but repudiated the remainder. I submit that no warrant can be [p232] found for such conduct. This thought was stressed by Mr. Calhoun in his address to the Senate; from which quotation has been made ante.
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.
But this did not endow the federal courts with authority to proceed in all matters within the judicial power of the federal government. Except as to the original jurisdiction of the Supreme Court, it is settled that the federal courts have only such jurisdiction as Congress sees fit to confer.
Only the jurisdiction of the Supreme Court is derived directly from the Constitution. Every other court created by the general government derives its jurisdiction wholly from the authority of Congress. That body may give, withhold or restrict such jurisdiction at its discretion, provided it be not extended beyond the boundaries fixed by the Constitution. . . . The Constitution simply gives to the inferior courts the capacity to take jurisdiction in the enumerated cases, but it requires an Act of Congress to confer it.
Kline v. Burke Construction Co., 260 U.S. 226, 234.
In Sheldon et al. v. Sill, 8 How. 441, 449, it was argued that Congress could not limit the judicial power vested in the courts by the Constitution -- the same theory, let it be observed, as the one now advanced concerning executive power. Replying, through Mr. Justice Grier, this court declared:
In the case of Turner v. Bank of North America , 4 Dall. 10, it was contended, as in this case, that, as it was a controversy between citizens of different States, the Constitution gave the plaintiff a right to sue in the Circuit Court notwithstanding he was an assignee within the restriction of the eleventh section of the Judiciary Act. But the court said --
The political [p233] truth is that the disposal of the judicial power (except in a few specified instances) belongs to Congress, and Congress is not bound to enlarge the jurisdiction of the federal courts to every subject, in every form which the Constitution might warrant.
This decision was made in 1799; since that time, the same doctrine has been frequently asserted by this court, as may be seen in McIntire v. Wood, 7 Cranch 506; Kendall v. United States, 12 Peters 616; Cary v. Curtis, 3 Howard 245.
The argument of counsel, reported in 4 Dallas, is interesting. The bad reasoning there advanced, although exposed a hundred years ago, is back again asking for a vote of confidence.
The Federal Constitution is an instrument of exact expression. Those who maintain that Art. II, Sec. 1, was intended as a grant of every power of executive nature not specifically qualified or denied must show that the term "executive power" had some definite and commonly accepted meaning in 1787. This court has declared that it did not include all powers exercised by the King of England; and, considering the history of the period, none can say that it had then (or afterwards) any commonly accepted and practical definition. If anyone of the descriptions of "executive power" known in 1787 had been substituted for it, the whole plan would have failed. Such obscurity would have been intolerable to thinking men of that time.
Fleming v. Page, 9 How. 603, 618 --
Neither is it necessary to examine the English decisions which have been referred to by counsel. It is true that most of the States have adopted the principles of English jurisprudence, so far as it concerns private and individual rights. And when such rights are in question, we habitually refer to the English decisions not only with respect, but in many [p234] cases as authoritative. But in the distribution of political power between the great departments of government, there is such a wide difference between the power conferred on the President of the United States and the authority and sovereignty which belong to the English crown that it would be altogether unsafe to reason from any supposed resemblance between them, either as regards conquest in war or any other subject where the rights and powers of the executive arm of the government are brought into question. Our own Constitution and form of government must be our only guide.
Blackstone, *190, 250, 252, affirms that "The supreme executive power of these kingdoms is vested by our laws in a single person, the king or queen," and that there are certain
branches of the royal prerogative which invest thus our sovereign lord, thus all-perfect and immortal in his kingly capacity, with a number of authorities and powers in the execution whereof consists the executive part of government.
And he defines "prerogative," as "consisting (as Mr. Locke has well defined it) in the discretionary power of acting for the public good where the positive laws are silent."
Montesquieu's Spirit of Laws, in 1787 the most popular and influential work on government, says:
In every government, there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations, and the executive in regard to matters that depend on the civil law. By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions. By the third, he punishes criminals or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other simply the executive power of the state. [p235]
Perhaps the best statement concerning "executive power" known in 1787 was by Mr. Jefferson in his Draft of a Fundamental Constitution for the Commonwealth of Virginia, proposed in 1783 (Writings, Ford's ed. 184, vol. 3, 155-156):
The executive powers shall be exercised by a Governor, who shall be chosen by joint ballot of both Houses of Assembly. . . . By executive powers, we mean no reference to those powers exercised under our former government by the crown as of its prerogative, nor that these shall be the standard of what may or may not be deemed the rightful powers of the Governor. We give them those powers only which are necessary to execute the laws (and administer the government), and which are not in their nature either legislative or judiciary. The application of this idea must be left to reason. We do, however, expressly deny him the prerogative powers of erecting courts, offices, boroughs, corporations, fairs, markets, ports, beacons, light-houses, and sea marks; of laying embargoes, of establishing precedence, of retaining within the State, or recalling to it any citizen thereof, and of making denizens, except so far as he may be authorized from time to time by the legislature to exercise any of those powers.
This document was referred to by Mr. Madison in the Federalist, No. XLVIII.
Substitute any of these descriptions or statements for the term "executive power" in Art. II, Sec. 1, and the whole plan becomes hopelessly involved -- perhaps impossible.
The term "executive power" is found in most, if not all, of the state constitutions adopted between 1776 and 1787. They contain no definition of it, but certainly it was not intended to signify what is now suggested. It meant in those instruments what Mr. Webster declared it signifies in the federal Constitution --
When they say it shall be vested in President, they mean that one magistrate, to be called a President, shall hold the executive [p236] authority; but they mean, further, that he shall hold this authority according to the grants and limitations of the Constitution itself.
The Constitution of New York, much copied in the federal Constitution, declared: "The supreme executive power and authority of this State shall be vested in a Governor." It then defined his powers and duties, among them, "to take care that the laws are faithfully executed to the best of his ability." It further provided, "that the Treasurer of this State shall be appointed by Act of the Legislature;" and entrusted the appointment of civil and military officers to a council. The Governor had no power to remove them, but apparently nobody thought he would be unable to execute the laws through officers designated by another.
The Constitution of Virginia, 1776, provided:
The legislative, executive, and judiciary department shall be separate and distinct, so that neither exercise the powers properly belonging to the other.
It then imposed upon the two Houses of Assembly the duty of selecting by ballot judges, Attorney General and Treasurer.
New Jersey Constitution, 1776 --
That the Governor . . . shall have the supreme executive power . . . and act as captain-general and commander in chief of all the militia. . . . That captains, and all other inferior officers of the militia, shall be chosen by the companies, in the respective counties; but field and general officers, by the Council and Assembly.
North Carolina Constitution, 1776 --
That the legislative, executive, and supreme judicial powers of government, ought to be forever separate and distinct from each other: . . . That the General Assembly shall, by joint ballot of both houses, appoint Judges of the Supreme Courts of Law and Equity, Judges of Admiralty, and Attorney-General. . . . That the General Assembly shall, by joint ballot of both houses, triennially appoint a Secretary for this State. [p237]
During the debate of 1789, Congressman Stone well said:
If gentlemen will tell us that powers, impliedly executive, belong to the President, they ought to go further with the idea, and give us a correct idea of executive power, as applicable to their rule. In an absolute monarchy, there never has been any doubt with respect to implication; the monarch can do what he pleases. In a limited monarchy, the prince has powers incident to kingly prerogative. How far will a federal executive, limited by a Constitution, extend in implications of this kind? Does it go so far as absolute monarchy? Or is it confined to a restrained monarchy? If gentlemen will lay down their rule, it will serve us as a criterion to determine all questions respecting the executive authority of this government. My conception may be dull, but telling me that this is an executive power raises no complete idea in my mind. If you tell me the nature of executive power, and how far the principle extends, I may be able to judge whether this has relation thereto, and how much is due to implication.
See The Federalist, No. XLVI.
In any rational search for answer to the questions arising upon this record, it is important not to forget --
That this is a government of limited powers definitely enumerated and granted by a written Constitution.
That the Constitution must be interpreted by attributing to its words the meaning which they bore at the time of its adoption and in view of commonly accepted canons of construction, its history, early and long-continued practices under it, and relevant opinions of this court.
That the Constitution endows Congress with plenary powers "to establish post offices and post roads."
That, exercising this power during the years from 1789 to 1836, Congress provided for postmasters and vested the [p238] power to appoint and remove all of them at pleasure in the Postmaster General.
That the Constitution contains no words which specifically grant to the President power to remove duly appointed officers. And it is definitely settled that he cannot remove those whom he has not appointed -- certainly they can be removed only as Congress may permit.
That postmasters are inferior officers within the meaning of Art. II, Sec. 2, of the Constitution.
That, from its first session to the last one, Congress has often asserted its right to restrict the President's power to remove inferior officers, although appointed by him with consent of the Senate.
That many Presidents have approved statutes limiting the power of the executive to remove, and that from the beginning such limitations have been respected in practice.
That this court, as early as 1803, in an opinion never overruled and rendered in a case where it was necessary to decide the question, positively declared that the President had no power to remove at will an inferior officer appointed with consent of the Senate to serve for a definite term fixed by an Act of Congress.
That the power of Congress to restrict removals by the President was recognized by this court as late as 1903, in Shurtleff v. United States.
That the proceedings in the Constitutional Convention of 1787, the political history of the times, contemporaneous opinion, common canons of construction, the action of Congress from the beginning, and opinions of this court all oppose the theory that, by vesting "the executive power" in the President, the Constitution gave him an illimitable right to remove inferior officers.
That this court has emphatically disapproved the same theory concerning "the judicial power" vested in the courts by words substantially the same as those which [p239] vest "the executive power" in the President. "The executive power shall be vested in a President of the United States of America."
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.
That to declare the President vested with indefinite and illimitable executive powers would extend the field of his possible action far beyond the limits observed by his predecessors, and would enlarge the powers of Congress to a degree incapable of fair appraisement.
Considering all these things, it is impossible for me to accept the view that the President may dismiss, as caprice may suggest, any inferior officer whom he has appointed with consent of the Senate, notwithstanding a positive inhibition by Congress. In the last analysis, that view has no substantial support, unless it be the polemic opinions expressed by Mr. Madison (and eight others) during the debate of 1789, when he was discussing questions relating to a "superior officer" to be appointed for an indefinite term. Notwithstanding his justly exalted reputation as one of the creators and early expounders of the Constitution, sentiments expressed under such circumstances ought not now to outweigh the conclusion which Congress affirmed by deliberate action while he was leader in the House and has consistently maintained down to the present year, the opinion of this court solemnly announced through the great Chief Justice more than a century ago, and the canons of construction approved over and over again.
Judgment should go for the appellant. [p240]
1. The suggestion that different considerations may possibly apply to nonconstitutional judicial officers I regard as a mere smokescreen.
2. Different phases of this general subject have been elaborately discussed in Congress. See discussions on the following measures: Bill to establish a Department of Foreign Affairs, 1789, Annals 1st Cong.; bill to amend the judicial system of the United States, 1802, Annals 7th Cong., 1st Sess.; bill to amend Act of May 15, 1820, fixing tenure of certain offices, 1835, Debates 23d Cong., 2d Sess.; bill to regulate the tenure of certain civil offices, 1866-1867, Globe, 39th Cong., 3d Sess.; Johnson impeachment trial, 1868, Globe Supplement, 40th Cong., 2d Sess.
3. This debate began May 19 in the Committee of the Whole on Mr. Madison's motion --
That it is the opinion of this committee that there shall be established an executive department, to be denominated the Department of Foreign Affairs, at the head of which there shall be an officer, to be called the Secretary to the Department of Foreign Affairs, who shall be appointed by the President, by and with the advice and consent of the Senate, and to be removable by the President.
The words "who shall be appointed by the President, by and with the advice and consent of the Senate" were objected to as superfluous, since "the Constitution had expressly given the power of appointment in words there used," and Mr. Madison agreed to their elimination.
Doubts were then expressed whether the officer could be removed by the President. The suggestion was that this could only be done by impeachment. Mr. Madison opposed the suggestion, and said:
I think the inference would not arise from a fair construction of the words of that instrument. . . . I think it absolutely necessary that the President should have the power of removing from office. . . . On the constitutionality of the declaration I have no manner of doubt.
Thereupon Mr. Vining, of Delaware, declared:
There were no negative words in the Constitution to preclude the President from the exercise of this power, but there was a strong presumption that he was invested with it, because it was declared that all executive power should be vested in him, except in cases where it is otherwise qualified; as, for example, he could not fully exercise his executive power in making treaties, unless with the advice and consent of the Senate -- the same in appointing to office.
Mr. Bland and Mr. Jackson further insisted that removal could be effected only through impeachment, and Mr. Madison replied: He
did not conceive it was a proper construction of the Constitution to say that there was no other mode of removing from office than that by impeachment; he believed this, as applied to the judges, might be the case; but he could never imagine it extended in the manner which gentlemen contended for. He believed they would not assert that any part of the Constitution declared that the only way to remove should be by impeachment; the contrary might be inferred, because Congress may establish offices by law; therefore, most certainly, it is in the discretion of the legislature to say upon what terms the office shall be held, either during good behaviour or during pleasure.
Later in the day, Mr. Madison discussed various objections offered, and said: "I cannot but believe, if gentlemen weigh well these considerations, they will think it safe and expedient to adopt the clause." Others spoke briefly, and then, as the record recites, "[t]he question was now taken, and carried by a considerable majority, in favor of declaring the power of removal to be in the President." The resolution was reported; the House concurred, and a committee (including Mr. Madison) was appointed to prepare and bring in a bill.
On June 2, the committee reported a bill, providing for a Secretary, "to be removable from office by the President of the United States," which was read and referred to the Committee of the Whole. It was taken up for consideration June 16, and the discussion continued during five days. Members expressed radically different views. Among other things, Mr. Madison said --
I have, since the subject was last before the House, examined the Constitution with attention, and I acknowledge that it does not perfectly correspond with the ideas I entertained of it from the first glance. . . . By a strict examination of the Constitution, on what appears to be its true principles, and considering the great departments of the government in the relation they have to each other, I have my doubts whether we are not absolutely tied down to the construction declared in the bill. . . .
If this is the true construction of this instrument, the clause in the bill is nothing more than explanatory of the meaning of the Constitution, and therefore not liable to any particular objection on that account. If the Constitution is silent, and it is a power the legislature have a right to confer, it will appear to the world, if we strike out the clause, as if we doubted the propriety of vesting it in the President of the United States. I therefore think it best to retain it in the bill.
the call for the question being now very general, it was put, shall the words "to be removable by the President," be struck out? It was determined in the negative; being yeas 20, nays 34.
There were further remarks, and "the committee then rose and reported the bill . . . to the House."
Discussion of the disputed provision was renewed on June 22. Mr. Benson moved to amend the bill "so as to imply the power of removal to be in the President," by providing for a Chief Clerk who should have custody of the records, etc., "whenever the said principal officer shall be removed from office by the President of the United States, or in any other case of vacancy." He "hoped his amendment would succeed in reconciling both sides of the House to the decision and quieting the minds of gentlemen." If successful, he would move to strike out the words, "to be removable by the President." After a prolonged discussion, the amendment prevailed; the much-challenged clause was stricken out, and the ambiguous one suggested by Mr. Benson was inserted. June 24 the bill, thus amended, finally passed.
Five members once delegates to the Constitutional Convention took part in the debate. Mr. Madison, Mr. Baldwin and Mr. Clymer expressed similar views; Mr. Sherman and Mr. Gerry were emphatically of the contrary opinion.
4. Officers with commissions in the State Department who were removed: Collectors of customs, 17; collectors and inspectors, 25; surveyors of ports, 4; surveyors and inspectors, 9; supervisors, 4; naval officers, 4; marshals, 28; district attorneys, 23; principal assessors, 3; collectors of direct taxes, 4; consuls, 49; ministers abroad, 5; charges des affaires, 2; secretaries of legation, 3; Secretary of State, l; Secretary of War, 1; Secretary of the Treasury, 1; Secretary of the Navy, 1; Attorney General, 1; Commissioner of Loans, 1; receivers of public moneys, 2; registers of land offices, 2; Agent of the Creek Nation, 1; Register of the Treasury, 1; Comptroller of the Treasury, 1; auditors, 2; Treasurer of the United States, 1; Treasurer of the Mint, 1; Commissioner of Public Buildings, 1; Recorder of Land Titles, 1; Judge of territory, 1; secretaries of territories, 2; Commissioner for the adjustment of private land claims, 1; surveyors-general, 2; surveyors of the public lands, 3.
Officers in the Treasury Department who were removed: Surveyor and inspector, 1; naval officer, 1; appraisers, 2; collectors, 2; surveyors, 2; receivers of public moneys, 12; registers of the land office, 4.
5. Mr. Lee (theretofore Attorney General of the United States), counsel for Marbury, distinctly claimed that the latter was appointed to serve for a definite term independent of the President's will, and upon that predicate rested the legal right which he insisted should be enforced by mandamus. Unless that right existed, there was no occasion -- no propriety, indeed -- for considering the court's power to declare an Act of Congress invalid.
6. At this time, the power of the court to declare Acts of Congress unconstitutional was being vigorously denied. The Supreme Court in United States History, by Charles Warren, Vol. I.