ArtII.S2.C2.3.15.4 Removals in the 1920s

Article II, Section 2, Clause 2:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established 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.

Congress’s authority to restrict the President’s power to remove Executive Branch officers was squarely addressed by the Supreme Court in the 1926 case of Myers v. United States.1 Myers concerned a postmaster who was removed from office in violation of a statute providing that postmasters could only be removed with the Senate’s consent.2 Chief Justice William Taft, a former President, writing for the Court in an opinion that took a formalist approach to the separation of powers, espoused a broad view of the President’s authority under Article II.3 His opinion examined the history of removals of Executive Branch officials as well as the constitutional text, and concluded that Article II’s vestment of executive power in the President bestowed on him “the general administrative control of those executing the laws,” 4 including the “exclusive power of removal.” 5 The Chief Justice described the Decision of 1789 at length, concluding that the First Congress had determined that “the power of appointment carried with it the power of removal,” a rule that was “acquiesce[d] [to] for nearly three-quarters of a century by all branches of the government.” 6 Congress had, Chief Justice Taft noted, disrupted this understanding by passing the Tenure of Office Act in 1867—which required Senate approval to remove Executive Branch officials and resulted in the impeachment of President Andrew Johnson—but, in the view of the Court, the Executive Branch never acquiesced to this assertion of power.7

The Court in Myers reasoned that Article II’s vestment of executive power in the President authorized him to select subordinate officers and direct them in executing the law; and just as it was “essential” to select officers to execute the law, “so must be his power of removing those for whom he cannot continue to be responsible.” 8 In the Court’s reading of the Constitution, the grant of the executive power to the President, supplemented by the duty to take care that the law is faithfully executed, meant that executive power includes “the exclusive power of removal.” 9 The Court thus invalidated the statute before it insofar as the law denied to the President “the unrestricted power of removal” of Executive Branch officers.10

272 U.S. 52 (1926). See Ex parte Hennen, 38 U.S. (13 Pet.) 230, 261 (1839) (concluding that courts authorized to appoint their own clerks also were empowered to remove them). back
Myers, 272 U.S. at 106–07. The case was brought by the postmaster’s intestate and sought backpay. Id. back
Id. at 131–77. back
Id. at 163–64 ( “[T]o hold otherwise would make it impossible for the President, in case of political or other differences with the Senate or Congress, to take care that the laws be faithfully executed.” ). back
Id. at 122. back
Id. at 119, 148. back
Id. at 166–71. back
Id. at 117. back
Id. at 122. back
Id. at 176. back