U.S. Supreme Court

MYERS v. UNITED STATES, 272 U.S. 52 (1926)

272 U.S. 52

MYERSv.

UNITED STATES.

No. 2.

Reargued April 13, 14, 1925.

Decided Oct. 25, 1926.

Messrs. Will R. King, of Portland, Or., and L. H. Cake, of Washington, D. C. (Martin L. Pipes, of Portland, Or., of counsel), for appellant.

Mr. George Wharton Pepper, of Philadelphia, Pa., amicus curiae.

Mr. James M. Beck, Sol. Gen., of New York City, and Rebert P. Reeder, Sp. Asst. Atty. Gen., for the United States.

Mr. Chief Justice TAFT delivered the opinion of the Court.

This case presents the question whether under the Constitution the President has the exclusive power of removing executive officers of the United States whom he has appointed by and with the advice and consent of the Senate.

Myers, appellant's intestate, was on July 21, 1917, appointed by the President, by and with the advice and consent of the Senate, to be a postmaster of the first class at Portland, Or., for a term of four years. On January 20, 1920, Myers' resignation was demanded. He refused the demand. On February 2, 1920, he was removed from office by order of the Postmaster General, acting by direction of the President. February 10th, Myers sent a petition to the President and another to the Senate committee on post offices, asking to be heard, if any charges were filed. He protested to the department against his removal, and continued to do so until the end of his term. He pursued no other occupation and drew compensation for no other service during the interval. On April 21, 1921, he brought this suit in the Court of Claims for his salary from the date of his removal, which, as claimed by supplemental petition filed after July 21, 1921, the end of his term, amounted to $8,838.71. In August, 1920, the President made a recess appointment of one Jones, who took office September 19, 1920.

The Court of Claims gave judgment against Myers and this is an appeal from that judgment. The court held that he had lost his right of action because of his delay in suing, citing Arant v. Lane,  249 U.S. 367 , 39 S. Ct. 293; Nicholas v. United States,  257 U.S. 71 , 42 S. Ct. 7, and Norris v. United States,  257 U.S. 77 , 42 S. Ct. 9. These cases show that when a United States officer is dismissed, whether in disregard of the law or from mistake as to the facts of his case, he must promptly take effective action to assert his rights. But we do not find that Myers failed in this regard. He was constant in his efforts at reinstatement. A hearing before the Senate committee could not be had till the notice of his removal was sent to the Senate or his successor was nominated. From the time of his removal until the end of his term, there were three sessions of the Senate without such notice or nomination. He put off bringing his suit until the expiration of the Sixty- Sixth Congress, March 4, 1921. After that, and three months before his term expired, he filed his petition. Under these circumstances, we think his suit was not too late. Indeed the Solicitor General, while not formally confessing error in this respect, conceded at the bar that no laches had been shown.

'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.' By the sixth section of the Act of Congress of July 12, 1876, 19 Stat. 80, 81, c. 179 (Comp. St. 7190), under which Myers was appointed with the advice and consent of the Senate as a first-class postmaster, it is provided that:

The Senate did not consent to the President's removal of Myers during his term. If this statute in its requirement that his term should be four years unless sooner removed by the President by and with the consent of the

Senate is valid, the appellant, Myers' administratrix, is entitled to recover his unpaid salary for his full term and the judgment of the Court of Claims must be reversed. The government maintains that the requirement is invalid, for the reason that under article 2 of the Constitution the President's power of removal of executive officers appointed by him with the advice and consent of the Senate is full and complete without consent of the Senate. If this view is sound, the removal of Myers by the President without the Senate's consent was legal, and the judgment of the Court of Claims against the appellant was correct, and must be affirmed, though for a different reason from the given by that court. We are therefore confronted by the constitutional question and cannot avoid it.

'Section 1. The executive Power shall be vested in a President of the United States of America. ...

'Section 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Officers, 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, 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 estab- The relevant parts of article 2 of the Constitution are as follows:

'The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

'Section 3. He shall from time to time give to the Congress information of the State of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

'Section 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.' lished 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 judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior Courts, shall hold their offices during good behavior . ...' Section 1 of article 3 provides:

The question where the power of removal of executive officers appointed by the President by and with the advice and consent of the Senate was vested, was presented early in the first session of the First Congress. There is no express provision respecting removals in the Constitution, except as section 4 of article 2, above quoted, provides for removal from office by impeachment. The subject

was not discussed in the Constitutional Convention. Under the Articles of Confederation, Congress was given the power of appointing certain executive officers of the Confederation, and during the Revolution and while the articles were given effect, Congress exercised the power of removal. May, 1776, 4 Journals of the Continental Congress, Library of Congress Ed., 361; August 1, 1777, 8 Journals, 596; January 7, 1779, 13 Journals, 32-33; June, 1779, 14 Journals, 542, 712, 714; November 23, 1780, 18 Journals, 1085; December 1, 1780, 18 Journals, 1115

Consideration of the executive power was initiated in the Constitutional Convention by the seventh resolution in the Virginia Plan introduced by Edmund Randolph. 1 Farrand. Records of the Federal Convention, 21. It gave to the executive 'all the executive powers of the Congress under the Confederation,' which would seem therefore to have intended to include the power of removal which had been exercised by that body as incident to the power of appointment. As modified by the committee of the whole this resolution declared for a national executive of one person to be elected by the Legislature, with power to carry into execution the national laws and to appoint to offices in cases not otherwise provided for. It was referred to the committee on detail (1 Farrand, 230), which recommended that the executive power should be vested in a single person to be styled the President of the United States, that he should take care that the laws of the United States be duly and faithfully executed, and that he should commission all the officers of the United States and appoint officers in all cases not otherwise provided by the Constitution (2 Farrand, 185). The committee further recommended that the Senate be given power to make treaties, and to appoint ambassadors and judges of the Supreme Court.

After the great compromises of the convention-the one giving the states equality of representation in the

Senate, and the other placing the election of the President, not in Congress, as once voted, but in an electoral college, in which the influence of larger states in the selection would be more nearly in proportion to their population-the smaller states led by Roger Sherman, fearing that under the second compromise the President would constantly be chosen from one of the larger states, secured a change by which the appointment of all officers, which theretofore had been left to the President without restriction, was made subject to the Senate's advice and consent, and the making of treaties and the appointments of ambassadors, public ministers, consuls, and judges of the Supreme Court were transferred to the President, but made subject to the advice and consent of the Senate. This third compromise was affected in a special committee in which Gouverneur Morris of Pennsylvania represented the larger states, and Roger Sherman the smaller states. Although adopted finally without objection by any state in the last days of the convention, members from the larger states, like Wilson and others, criticized this limitation of the President's power of appointment of executive officers and the resulting increase of the power of the Senate. 2 Farrand, 537, 538, 539.

In the House of Representatives of the First Congress, on Tuesday, May 18, 1789, Mr. Madison moved in the committee of the whole that there should be established three executive departments, one of Foreign Affairs, another of the Treasury, and a third of War, at the head of each of which there should be a Secretary, to be appointed by the President by and with the advice and consent of the Senate, and to be removable by the President. The committee agreed to the establishment of a Department of Foreign Affairs, but a discussion ensued as to making the Secretary removable by the President. 1 Annals of Congress, 370, 371. 'The question was now taken and carried, by a considerable majority, in favor

of declaring the power of removal to be in the President.' 1 Annals of Congress, 383.

On June 16, 1789, the House resolved itself into a committee of the whole on a bill proposed by Mr. Madison for establishing an executive department to be denominated the Department of Foreign Affairs, in which the first clause, after stating the title of the officer and describing his duties, had these words 'to be removable from office by the President of the United States.' 1 Annals of Congress, 455. After a very full discussion the question was put; Shall the words 'to be removable by the President' be struck out? It was determined in the negative-yeas 20, nays 34. 1 Annals of Congress, 576.

'Mr. Benson moved to amend the bill, by altering the second clause, so as to imply the power of removal to be in the President alone. The clause enacted that there should be a chief clerk, to be appointed by the Secretary of Foreign Affairs, and employed as he thought proper, and who, in case of vacancy, should have the charge and custody of all records, books, and papers appertaining to the department. The amendment proposed that the chief clerk, 'whenever the said principal officer shall be removed from office by the President of the United States, or in any other case of vacancy,' should during such vacancy, have the charge and custody of all records, books, and papers appertaining to the department.' 1 Annals of Congress, 578.

'Mr. Benson stated that his objection to the clause 'to be removable by the President' arose from an idea that the power of removal by the President hereafter might appear to be exercised by virtue of a legislative grant only, and consequently be subjected to legislative instability, when he was well satisfied in his own mind that it was fixed by a fair legislative construction of the Constitution.' 1 Annals of Congress, 579. On June 22, in the renewal of the discussion:

'Mr. Benson declared, if he succeeded in this amendment, he would move to strike out the words in the first clause, 'to be removable by the President,' which appeared somewhat like a grant. Now, the mode he took would evade that point and establish a legislative construction of the Constitution. He also hoped his amendment would succeed in reconciling both sides of the House to the decision, and quieting the minds of gentlemen.' 1 Annals of Congress, 578.

'They certainly may be construed to imply a legislative grant of the power. He wished everything like ambiguity expunged, and the sense of the House explicitly declared, and therefore seconded the motion. Gentlemen have all along proceeded on the idea that the Constitution vests the power in the President, and what arguments were brought forward respecting the convenience or inconvenience of such disposition of the power were intended only to throw light upon what was meant by the compilers of the Constitution. Now, as the words proposed by the gentleman from New York expressed to his mind the meaning of the Constitution, he should be in favor of them, and would agree to strike out those agreed to in the committee.' 1 Annals of Congress, 578, 579. Mr. Madison admitted the objection made by the gentleman near him (Mr. Benson) to the words in the bill. He said:

'That there shall be in the State Department an inferior officer to be appointed by the said principal officer, and to be employed therein as he shall deem proper, to be called the chief clerk in the Department of Foreign Affairs, and who, whenever the principal officers shall be removed from office by the President of the United States, or in any other case of vacancy, shall, during such va- Mr. Benson's first amendment to alter the second clause by the insertion of the italicized words, made that clause read as follows:

cancy, have charge and custody of all records, books and papers appertaining to said department.'

The first amendment was then approved by a vote of 30 to 18. 1 Annals of Congress, 580. Mr. Benson then moved to strike out in the first clause the words 'to be removable by the President,' in pursuance of the purpose he had already declared, and this second motion of his was carried by a vote of 31 to 19. 1 Annals of Congress, 585.

The bill as amended was ordered to be engrossed, and read the third time the next day, June 24, 1789, and was then passed by a vote of 29 to 22, and the clerk was directed to carry the bill to the Senate and desire their concurrence. 1 Annals of Congress, 591.

It is very clear from this history that the exact question which the House voted upon was whether it should recognize and declare the power of the President under the Constitution to remove the Secretary of Foreign Affairs without the advice and consent of the Senate. That was what the vote was taken for. Some effort has been made to question whether the decision carries the result claimed for it, but there is not the slightest doubt. after an examination of the record, that the vote was, and was intended to be, a legislative declaration that the power to remove officers appointed by the President and the Senate vested in the President alone, and until the Johnson impeachment trial in 1868 its meaning was not doubted, even by those who questioned its soundness.

The discussion was a very full one. Fourteen out of the 29 who voted for the passage of the bill and 11 of the 22 who voted against the bill took part in the discussion. Of the members of the House, 8 had been in the Constitutional Convention, and of these 6 voted with the majority, and 2, Roger Sherman and Elbridge Gerry, the latter of whom had refused to sign the Constitution, voted in the minority. After

the bill as amended had passed the House, it was sent to the Senate, where it was discussed in secret session, without report. The critical vote there was upon the striking out of the clause recognizing and affirming the unrestricted power of the President to remove. The Senate divided by 10 to 10, requiring the deciding vote of the Vice President, John Adams, who voted against striking out, and in favor of the passage of the bill as it had left the House. [^{Footnote 1} ] Ten of the Senators had been in the Constitutional Convention, and of them 6 voted that the power of removal was in the President alone. The bill, having passed as it came from the House, was signed by President Washington and became a law. Act July 27, 1789, 1 Stat. 28, c. 4.

The bill was discussed in the House at length and with great ability. The report of it in the Annals of Congress is extended. James Madison was then a leader in the House, as he had been in the convention. His arguments in support of the President's constitutional power of removal independently of congressional provision, and without the consent of the Senate, were masterly, and he carried the House.

It is convenient in the course of our discussion of this case to review the reasons advanced by Mr. Madison and his associates for their conclusion, supplementing them, so far as may be, by additional considerations which lead this court to concur therein.

First. Mr. Madison insisted that article 2 by vesting the executive power in the President was intended to grant to him the power of appointment and removal of executive officers except as thereafter expressly provided in that article. He pointed out that one of the chief

'If there is a principle in our Constitution, indeed in any free Constitution more sacred than another, it is that which separates the legislative, executive and judicial powers. If there is any point in which the separation of the legislative and executive powers ought to be maintained with great caution, it is that which relates to officers and offices.' 1 Annals of Congress, 581. purposes of the convention was to separate the legislative from the executive functions. He said:

Their union under the Confederation had not worked well, as the members of the convention knew. Montesquieu's view that the maintenance of independence, as between the legislative, the executive and the judicial branches, was a security for the people had their full approval. Madison in the Convention, 2 Farrand, Records of the Federal Convention, 56. Kendall v. United States, 12 Pet. 524, 610. Accordingly the Constitution was so framed as to vest in the Congress all legislative powers therein granted, to vest in the President the executive power, and to vest in one Supreme Court and such inferior courts as Congress might establish the judicial power. From this division on principle, the reasonable construction of the Constitution must be that the branches should be kept separate in all cases in which they were not expressly blended, and the Constitution should be expounded to blend them no more than it affirmatively requires. Madison, 1 Annals of Congress, 497. This rule of construction has been confirmed by this court in Meriwether v. Garrett,  102 U.S. 472 , 515; Kilbourn v. Thompson,  103 U.S. 168 , 190; Mugler v. Kansas,  123 U.S. 623, 662 , 8 S. Ct. 273.

The debates in the Constitutional Convention indicated an intention to create a strong executive, and after a controversial discussion the executive power of the government was vested in one person and many of his important functions were specified so as to avoid the

humiliating weakness of the Congress during the Revolution and under the Articles of Confederation. 1 Farrand, 66-97.

Mr. Madison and his associates in the discussion in the House dwelt at length upon the necessity there was for construing article 2 to give the President the sole power of removal in his responsibility for the conduct of the executive branch, and enforced this by emphasizing his duty expressly declared in the third section of the article to 'take care that the laws be faithfully executed.' Madison, 1 Annals of Congress, 496, 497.

The vesting of the executive power in the President was essentially a grant of the power to execute the laws. But the President alone and unaided could not execute the laws. He must execute them by the assistance of subordinates. This view has since been repeatedly affirmed by this court. Wilcox v. Jackson, 13 Pet. 498, 513; United States v. Eliason, 16 Pet. 291, 302; Williams v. United States, 1 How. 290, 297; Cunningham v. Neagle,  135 U.S. 1, 63 , 10 S. Ct. 658; Russell Co. v. United States,  261 U.S. 514, 523 , 43 S. Ct. 428. As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that as part of his executive power he should select those who were to act for him under his direction in the execution of the laws. The further implication must be, in the absence of any express limitation respecting removals, that as his selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for whom he cannot continue to be responsible. Fisher Ames, 1 Anals of Congress, 474. It was urged that the natural meaning of the term 'executive power' granted the President included the appointment and removal of executive subordinates. If such appointments and removals were not an exercise of the executive power, what were they? They certainly

were not the exercise of legislative or judicial power in government as usually understood.

It is quite true that, in state and colonial governments at the time of the Constitutional Convention, power to make appointments and removals had sometimes been lodged in the Legislatures or in the courts, but such a disposition of it was really vesting part of the executive power in another branch of the government. In the British system, the crown, which was the executive, had the power of appointment and removal of executive officers, and it was natural, therefore, for those who framed our Constitution to regard the words 'executive power' as including both. Ex parte Grossman,  267 U.S. 87, 110 , 45 S. Ct. 332, 38 A. L. R. 131. Unlike the power of conquest of the British crown, considered and rejected as a precedent for us in Fleming v. Page, 9 How. 603, 618, the association of removal with appointment of executive officers is not incompatible with our republican form of government.

The requirement of the second section of article 2 that the Senate should advise and consent to the presidential appointments, was to be strictly construed. The words of section 2, following the general grant of executive power under section 1, were either an enumeration and emphasis of specific functions of the executive, not all inclusive, or were limitations upon the general grant of the executive power, and as such, being limitations, should not be enlarged beyond the words used. Madison, 1 Annals, 462, 463, 464. The executive power was given in general terms strengthened by specific terms where emphasis was regarded as appropriate, and was limited by direct expressions where limitation was needed, and the fact that no express limit was placed on the power of removal by the executive was convincing indication that none was intended. This is the same construction of article 2 as that of Alexander Hamilton quoted infra.

Second. The view of Mr. Madison and his associates was that not only did the grant of executive power to the President in the first section of article 2 carry with it the power of removal, but the express recognition of the power of appointment in the second section enforced this view on the well-approved principle of constitutional and statutory construction that the power of removal of executive officers was incident to the power of appointment. It was agreed by the opponents of the bill, with only one or two exceptions, that as a constitutional principle the power of appointment carried with it the power of removal. Roger Sherman, 1 Annals of Congress, 491. This principle as a rule of constitutional and statutory construction, then generally conceded, has been recognized ever since. Ex parte Hennen, 13 Pet. 230, 259; Reagan v. United States,  182 U.S. 419 , 21 S. Ct. 842; Shurtleff v. United States,  189 U.S. 311, 315 , 23 S. Ct. 535. The reason for the principle is that those in charge of and responsible for administering functions of government, who select their executive subordinates, need in meeting their responsibility to have the power to remove those whom they appoint.

Under section 2 of article 2, however, the power of appointment by the executive is restricted in its exercise by the provision that the Senate, a part of the legislative branch of the government, may check the action of the executive by rejecting the officers he selects. Does this make the Senate part of the removing power? And this, after the whole discussion in the House is read attentively, is the real point which was considered and decided in the negative by the vote already given.

The history of the clause by which the Senate was given a check upon the President's power of appointment makes it clear that it was not prompted by any desire to limit removals. As already pointed out, the important purpose of those who brought about the restriction was to lodge in the Senate, where the small states had equal

'I am well authorized to say that the mingling of the powers of the President and Senate was strongly opposed in the convention which had the honor to submit to the consideration of the United States and the different States the present system for the government of the Union. Some gentlemen opposed it to the last, and finally it was the principal ground on which they refused to give it their signature and assent. One gentleman called it a monstrous and unnatural connection, and did not hesitate to affirm it would bring on convulsions in the government. This objection was not confined to the walls of the convention; it has been subject of newspaper declamation and perhaps justly so. Ought we not, therefore, to be careful not to extend this unchaste connection any further?' 1 Annals of Congress, 557. representation with the larger states, power to prevent the President from making too many appointments from the larger states. Roger Sherman and Oliver Ellsworth, delegates from Connecticut, reported to its Governor: 'The equal representation of the states in the Senate and the voice of that branch in the appointment to offices will secure the rights of the lesser as well as of the greater states.' 3 Farrand, 99. The formidable opposition to the Senate's veto on the President's power of appointment indicated that in construing its effect, it should not be extended beyond its express application to the matter of appointments. This was made apparent by the remarks of Abraham Baldwin, of Georgia, in the debate in the First Congress. He had been a member of the Constitutional Convention. In opposing the construction which would extend the Senate's power to check appointments to removals from office, he said:

'Perhaps there was no argument urged with more success or more plausibly grounded against the Constitution under which we are now deliberating than that founded Madison said:

on the mingling of the executive and legislative branches of the government in one body. It has been objected that the Senate have too much of the executive power even, by having control over the President in the appointment to office. Now shall we extend this connection between the legislative and executive departments which will strengthen the objection and diminish the responsibility we have in the head of the executive?' 1 Annals of Congress, 380.

It was pointed out in this great debate that the power of removal, though equally essential to the executive power is different in its nature from that of appointment. Madison, 1 Annals of Congress, 497 et seq.; Clymer, 1 Annals, 489; Sedgwick, 1 Annals, 522; Ames, 1 Annals, 541, 542; Hartley, 1 Annals, 481. A veto by the Senate-a part of the legislative branch of the government-upon removals is a much greater limitation upon the executive branch, and a much more serious blending of the legislative with the executive, than a rejection of a proposed appointment. It is not to be implied. The rejection of a nominee of the President for a particular office does not greatly embarrass him in the conscientious discharge of his high duties in the selection of those who are to aid him, because the President usually has an ample field from which to select for office, according to his preference, competent and capable men. The Senate has full power to reject newly proposed appointees whenever the President shall remove the incumbents. Such a check enables the Senate to prevent the filling of offices with bad or incompetent men, or with those against whom there is tenable objection.

The power to prevent the removal of an officer who has served under the President is different from the authority to consent to or reject his appointment. When a nomination is made, it may be presumed that the Senate is, or may become, as well advised as to the fitness of the nomi-

nee as the President, but in the nature of things the defects in ability or intelligence or loyalty in the administration of the laws of one who has served as an officer under the President are facts as to which the President, or his trusted subordinates, must be better informed than the Senate, and the power to remove him may therefor be regarded as confined for very sound and practical reasons, to the governmental authority which has administrative control. The power of removal is incident to the power of appointment, not to the power of advising and consenting to appointment, and when the grant of the executive power is enforced by the express mandate to take care that the laws be faithfully executed, it emphasizes the necessity for including within the executive power as conferred the exclusive power of removal.

'The three distinct powers, legislative, judicial and executive should be placed in different hands. 'He shall take care that the laws be faithfully executed' are sweeping words. The officers should be attentive to the President to whom the Senate is not a council. To turn a man out of office is an exercise neither of legislative nor of judicial power; it is like a tree growing upon land that has been granted. The advice of the Senate does not make the appointment. The President appoints. There Oliver Ellsworth was a member of the Senate of the First Congress, and was active in securing the imposition of the Senate restriction upon appointments by the President. He was the author of the Judiciary Act in that Congress (1 Stat. 73), and subsequently Chief Justice of the United States. His view as to the meaning of this article of the Constitution, upon the point as to whether the advice of the Senate was necessary to removal, like that of Madison, formed and expressed almost in the very atmosphere of the convention, was entitled to great weight. What he said in the discussion in the Senate was reported by Senator William Patterson ( 2 Bancroft, History of the Constitution of the United States, 192), as follows:

are certain restrictions in certain cases, but the restriction is as to the appointment, and not as to the removal.'

In the discussion in the First Congress fear was expressed that such a constitutional rule of construction as was involved in the passage of the bill would expose the country to tyranny through the abuse of the exercise of the power of removal by the President. Underlying such fears was the fundamental misconception that the President's attitude in his exercise of power is one of opposition to the people, while the Congress is their only defender in the government, and such a misconception may be noted in the discussions had before this court. This view was properly contested by Mr. Madison in the discussion (1 Annals of Congress, 461), by Mr. Hartley (1 Annals, 481), by Mr. Lawrence (1 Annals, 485), and by Mr. Scott (1 Annals, 533). The President is a representative of the people, just as the members of the Senate and of the House are, and it may be at some times, on some subjects, that the President, elected by all the people, is rather more representative of them all than are the members of either body of the Legislature, whose constituencies are local and not country wide, and as the President is elected for four years, with the mandate of the people to exercise his executive power under the Constitution, there would seem to be no reason for construing that instrument in such a way as to limit and hamper that power beyond the limitations of it, expressed or fairly implied.

'Gentlemen ask, Will not the power of suspending an officer be sufficient to prevent malconduct? Here is some Another argument advanced in the First Congress against implying the power of removal in the President alone from its necessity in the proper administration of the executive power was that all embarrassment in this respect could be avoided by the President's power of suspension of officers, disloyal or incompetent, until the Senate could act. To this, Mr. Benson, said:

inconsistency in their arguments. They declare that Congress have no right to construe the Constitution in favor of the President, with respect to removal; yet they propose to give a construction in favor of the power of suspension being exercised by him. Surely gentlemen do not pretend that the President has the power of suspension granted expressly by the Constitution; if they do, they have been more successful in their researches into that instrument than I have been. If they are willing to allow a power of suspending, it must be because they construe some part of the Constitution in favor of such a grant. The construction in this case must be equally unwarrantable. But admitting it proper to grant this power, what then? When an officer is suspended, does the place become vacant? May the President proceed to fill it up? Or must the public business be likewise suspended? When we say an officer is suspended, it implies that the place is not vacant; but the parties may be heard, and, after the officer is freed from the objections that have been taken to his conduct, he may proceed to execute the duties attached to him. What would be the consequence of this? If the Senate, upon its meeting, were to acquit the officer, and replace him in his station, the President would then have a man forced on him whom he considered as unfaithful, and could not, consistent with his duty, and a proper regard to the general welfare, go so far as to intrust him with full communications relative to the business of his department. Without a confidence in the Executive Department, its operations would be subject to perpetual discord, and the administration of the government become impracticable.' 1 Annals of Congress, 506.

'The Departments of Foreign Affairs and War are peculiarly within the powers of the President, and he must be responsible for them; but take away his controlling power, and upon what principle do you require his responsibility? Mr. Vining said:

'The gentlemen say the President may suspend. They were asked if the Constitution gave him this power any more than the other? Do they contend the one to be a more inherent power than the other? If they do not, why shall it be objected to us that we are making a Legislative construction of the Constitution. when they are contending for the same thing?' 1 Annals of Congress, 512.

In the case before us, the same suggestion has been made for the same purpose, and we think it is well answered in the foregoing. The implication of removal by the President alone is no more a strained construction of the Constitution than that of suspension by him alone and the broader power is much more needed and more strongly to be implied.

Third. Another argument urged against the constitutional power of the President alone to remove executive officers appointed by him with the consent of the Senate is that, in the absence of an express power of removal granted to the President, power to make provision for removal of all such officers is vested in the Congress by section 8 of article 1.

'He seems to think (if I understand him rightly) that the power of displacing from office is subject to legislative discretion, because, it having a right to create, it may limit or modify as it thinks proper. I shall not say but at first view this doctrine may seem to have some plausibility. But when I consider that the Constitution clearly intended to maintain a marked distinction between the legislative, executive and judicial powers of government, and when I consider that, if the Legislature has a power such as is contended for, they may subject and transfer at discretion powers from one department of our government to another, they may, on that principle, Mr. Madison, mistakenly thinking that an argument like this was advanced by Roger Sherman, took it up and answered it as follows:

exclude the President altogether from exercising any authority in the removal of officers, they may give to the Senate alone, or the President and Senate combined, they may vest it in the whole Congress, or they may reserve it to be exercised by this house. When I consider the consequences of this doctrine, and compare them with the true principles of the Constitution, I own that I cannot subscribe to it . ...' 1 Annals of Congress, 495, 496.

Of the 11 members of House who spoke from amongst the 22 opposing the bill, 2 insisted that there was no power of removing officers after they had been appointed, except by impeachment, and that the failure of the Constitution expressly to provide another method of removal involved this conclusion. Eight of them argued that the power of removal was in the President and Senate; that the House had nothing to do with it; and most of these were very insistent upon this view in establishing their contention that it was improper for the House to express in legislation any opinion on the constitutional question whether the President could remove without the Senate's consent.

The constitutional construction that excludes Congress from legislative power to provide for the removal of superior officers finds support in the second section of article 2. By it the appointment of all officers, whether superior or inferior, by the President is declared to be subject to the advice and consent of the Senate. In the absence of any specific provision to the contrary, the power of appointment to executive office carries with it, as a necessary incident, the power of removal. Whether the Senate must concur in the removal is aside from the point we now are considering. That point is that by the specific constitutional provision for appointment of executive officers with its necessary incident of removal, the power of appointment and removal is clearly provided for by

the Constitution, and the legislative power of Congress in respect to both is excluded save by the specific exception as to inferior offices in the clause that follows. This is 'but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.' These words, it has been held by this court, give to Congress the power to limit and regulate removal of such inferior officers by heads of departments when it exercises its constitutional power to lodge the power of appointment with them. United States v. Perkins,  116 U.S. 483, 485 , 6 S. Ct. 449, 450 (29 L. Ed. 700). Here then is an express provision introduced in words of exception for the exercise by Congress of legislative power in the matter of appointments and removals in the case of inferior executive officers. The phrase, 'But Congress may by law vest,' is equivalent to 'excepting that Congress may by law vest.' By the plainest implication it excludes congressional dealing with appointments or removals of executive officers not falling within the exception and leaves unaffected the executive power of the President to appoint and remove them.

A reference of the whole power of removal to general legislation by Congress is quite out of keeping with the plan of government devised by the framers of the Constitution. It could never have been intended to leave to Congress unlimited discretion to vary fundamentally the operation of the great independent executive branch of government and thus most seriously to weaken it. It would be a delegation by the convention to Congress of the function of defining the primary boundaries of another of the three great divisions of government. The inclusion of removals of executive officers in the executive power vested in the President by article 2 according to its usual definition, and the implication of his power of removal of such officers from the provision of section 2 expressly recognizing in him the power of their appoint-

ment, are a much more natural and appropriate source of the removing power.

It is reasonable to suppose also that had it been intended to give to Congress power to regulate or control removals in the manner suggested, it would have been included among the specifically enumerated legislative powers in article 1, or in the specified limitations on the executive power in article 2. The difference between the grant of legislative power under article 1 to Congress which is limited to powers therein enumerated, and the more general grant of the executive power to the President under article 2 is significant. The fact that the executive power is given in general terms strengthened by specific terms where emphasis is appropriate, and limited by direct expressions where limitation is needed, and that no express limit is placed on the power of removal by the executive is a convincing indication that none was intended.

'The powers relative to offices are partly legislative and partly executive. The Legislature creates the office, defines the powers, limits its duration, and annexes a compensation. This done, the legislative power ceases. They ought to have nothing to do with designating the man to fill the office. That I conceive to be of an executive nature. Although it be qualified in the Constitution, I would not extend or strain that qualification beyond the limits precisely fixed for it. We ought always to con- It is argued that the denial of the legislative power to regulate removals in some way involves the denial of power to prescribe qualifications for office, or reasonable classification for promotion, and yet that has been often exercised. We see no conflict between the latter power and that of appointment and removal, provided of course that the qualifications do not so limit selection and so trench upon executive choice as to be in effect legislative designation. As Mr. Madison said in the First Congress:

sider the Constitution with an eye to the principles upon which it was founded. In this point of view, we shall readily conclude that if the Legislature determines the powers, the honors, and emoluments of an office, we should be insecure if they were to designate the officer also. The nature of things restrains and confines the legislative and executive authorities in this respect; and hence it is that the Constitution stipulates for the independence of each branch of the government.' 1 Annals of Congress, 581, 582.

The legislative power here referred to by Mr. Madison is the legislative power of Congress under the Constitution, not legislative power independently of it. Article 2 expressly and by implication withholds from Congress power to determine who shall appoint and who shall remove except as to inferior offices. To Congress under its legislative power is given the establishment of offices, the determination of their functions and jurisdiction, the prescribing of reasonable and relevant qualifications and rules of eligibility of appointees, and the fixing of the term for which they are to be appointed and their compensation-all except as otherwise provided by the Constitution.

An argument in favor of full congressional power to make or withhold provision for removals of all appointed by the President is sought to be found in an asserted analogy between such a power in Congress and its power in the establishment of inferior federal courts. By article 3 the judicial power of the United States is vested in one Supreme Court and in such inferior courts as the Congress may from time to time establish. By section 8 of article 1 also Congress is given power to constitute tribunals inferior to the Supreme Court. By the second section of article 3 the judicial power is extended to all cases in law and equity under this Constitution and to a substantial number of other classes of cases. Under the ac-

cepted construction the cases mentioned in this section are treated as a description and reservoir of the judicial power of the United States and a boundary of that federal power as between the United States and the states, and the field of jurisdiction within the limits of which Congress may vest particular jurisdiction in any one inferior federal court which it may constitute. It is clear that the mere establishment of a federal inferior court does not vest that court with all the judicial power of the United States as conferred in the second section of article 3, but only that conferred by Congress specifically on the particular court. It must be limited territorially and in the classes of cases to be heard, and the mere creation of the courts does not confer jurisdiction except as it is conferred in the law of its creation or its amendments. It is said that similarly in the case of the executive power, which is 'vested in the President,' the power of appointment and removal cannot arise until Congress creates the office and its duties and powers, and must accordingly be exercised and limited only as Congress shall in the creation of the office prescribe.

We think there is little or no analogy between the two legislative functions of Congress in the cases suggested. The judicial power described in the second section of article 3 is vested in the courts collectively, but is manifestly to be distributed to different courts and conferred or withheld as Congress shall in its discretion provide their respective jurisdictions, and is not all to be vested in one particular court. Any other construction would be impracticable. The duty of Congress, therefore, to make provision for the vesting of the whole federal judicial power in federal courts, were it held to exist, would be one of imperfect obligation and unenforceable. On the other hand, the moment an office and its powers and duties are created, the power of appointment and removal, as limited by the Constitution, vests in the execu-

tive. The functions of distributing jurisdiction to courts and the exercise of it when distributed and vested are not at all parallel to the creation of an office, and the mere right of appointment to, and of removal from, the office which at once attaches to the executive by virtue of the Constitution.

Fourth. Mr. Madison and his associates pointed out with great force the unreasonable character of the view that the convention intended, without express provision, to give to Congress or the Senate, in case of political or other differences, the means of thwarting the executive in the exercise of his great powers and in the bearing of his great responsibility by fastening upon him, as subordinate executive officers, men who by their inefficient service under him, by their lack of loyalty to the service, or by their different views of policy might make his taking care that the laws be faithfully executed most difficult or impossible.

'Vest this power in the Senate jointly with the President, and you abolish at once that great principle of unity and responsibility in the executive department, which was intended for the security of liberty and the public good. If the President should possess alone the power of removal from office, those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; the lowest officers, the middle grade, and the highest will depend, as they ought, on the President, and the President on the community.' 1 Annals of Congress, 499. As Mr. Madison said in the debate in the First Congress:

'The supreme executive officer against his assistant; and the Senate are to sit as judges to determine whether sufficient cause of removal exists. Does not this set the Senate over the head of the President? But suppose they Mr. Boudinot of New Jersey said upon the same point:

shall decide in favor of the officer, what a situation is the President then in, surrounded by officers with whom, by his situation, he is compelled to act, but in whom he can have no confidence, reversing the privilege given him by the Constitution, to prevent his having officers imposed upon him who do not meet his approbation?' 1 Annals of Congress, 468.

'Shall a man under these circumstances be saddled upon the President, who has been appointed for no other purpose but to aid the President in performing certain duties? Shall he be continued, I ask again, against the will of the President? If he is, where is the responsibility? Are you to look for it in the President, who has no control over the officer, no power to remove him if he acts unfeelingly or unfaithfully? Without you make him responsible, you weaken and destroy the strength and beauty of your system.' 1 Annals of Congress, 522. Mr. Sedgwick of Massachusetts asked the question:

Made responsible under the Constitution for the effective enforcement of the law, the President needs as an indispensable aid to meet it the disciplinary influence upon those who act under him of a reserve power of removal. But it is contended that executive officers appointed by the President with the consent of the Senate are bound by the statutory law, and are not his servants to do his will, and that his obligation to care for the faithful execution of the laws does not authorize him to treat them as such. The degree of guidance in the discharge of their duties that the President may exercise over executive officers varies with the character of their service as prescribed in the law under which they act. The highest and most important duties which his subordinates perform are those in which they act for him. In such cases they are exercising not their own but his discretion. This field is a very large one. It is sometimes described as political. Kendall v. United States, 12

Pet 524, at page 610. Each head of a department is and must be the President's alter ego in the matters of that department where the President is required by law to exercise authority.

'The Constitution, section 3, article 2, declares that the President 'shall take care that the laws be faithfully executed,' and he is provided with the means of fulfilling this obligation by his authority to commission all the officers of the United States, and by and with the advice and consent of the Senate to appoint the most important of them and to fill vacancies. He is declared to be commander-in-chief of the Army and Navy of the United States. The duties with are thus imposed upon him he is further enabled to perform by the recognition in the Constitution, and the creation by Acts of Congress, of executive departments, which have varied in number from four or five to seven or eight, the heads of which are familiarly called Cabinet ministers. These aid him in the performance of the great duties of his office, and represent him in a thousand acts to which it can hardly be supposed his personal attention is called, and thus he is enabled to fulfill the duty of his great department, expressed in the phrase that 'he shall take care that the laws be faithfully executed." The extent of the political responsibility thrust upon the President is brought out by Mr. Justice Miller, speaking for the court in Cunningham v. Neagle,  135 U.S. 1 , at page 63, 10 S. Ct. 658, 668 (34 L. Ed. 55):

He instances executive dealings with foreign governments, as in the case of Martin Koszta, and he might have added the Jonathan Robins Case as argued by John Marshall in Congress, 5 Wheat. Appendix 1, and approved by this court in Fong Yue Ting v. United States,  149 U.S. 698, 714 , 13 S. Ct. 1016. He notes the President's duty as to the protection of the mails, as to which the case of In re Debs,