Myers vs. United States- 1926

Myers vs. United States- 1926

TAFT, C. J. 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.
Meyers was on July 21, 1917 appointed by the President, by and with the advice and consent of the Senate, to be a postmaster of the first class at Portland, Oregon, for a term of four years. On January 20, 1920, Myers's 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....
By the 6th section of the Act of Congress of July 12, 1876, under which Myers was appointed with the advice and consent of the Senate as a first class postmaster, it is provided that "Postmasters of the first, second and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate and shall hold their offices for four years unless sooner removed or suspended according to law".
The Senate did not consent to the President's removal of Myers during his term. If this statute in its requirement that his term should be four years unless sooner removed by the President by and with the consent of the Senate is valid, the appellant . . . is entitled to recover his unpaid salary for his full term and the judgement 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....
[There follows a learned discussion of the history of the President's power of removal.]
Our conclusion on the merits sustained by the arguments before stated is that article 2 grants to the President the executive power of the Government, i. e. the general administrative control of those executing the laws, including the power of appointment and removal of executive officers, a conclusion confirmed by his obligation to take care that the laws be faithfully executed; that article 2 excludes the legislative of executive power by Congress to provide for appointments and removals except only as granted therein to Congress in the matter of inferior offices; that Congress is only given power to provide for
— — ~~

Appointments and removals of inferior office after it has vested, and on condition lit it does vest, their appointment in other atbontl th tn the President with the Senate's sent that the provisions of the second Lion of article 2, which blend action by lielegislath-e branch, or by part of it, in the wrk of the executive, are limitations to be kids construed and not to be extended by implication; that the President's power of Novak is further established as an incident b his specifically enumerated function of intment by and with the advice of the le. but that such incident does not by ication extend to removals of the Senate's to checking appointment; and finally to hold otherwise would make it imposfor the President in case of political or ther difference with the Senate or Congress ke care that the laws be faithfully exe
L
cozne now to a period in the history of ,o\ern!nent when both houses of Conattempted to reverse this constitutional ruction find to subject the power of reg executive officers appointed by the lent and conformed by the Senate to control of the Senate, indeed finally to the cd power in Congress to place the re
of such officers anywhere in the government reversal grew out of the serious politic diiference between the two Houses of ess and President Johnson.... The legislation in support of the reconstruction of Congress was the Tenure of Act of March 2, 1867, providing that ers appointed by and with the Consent
Senate should hold their offices until uccessors should have in like manner appointed and qualified, that certain departments, including the Secretary ; should hold their offices during the if the President by whom appointed 6 month thereafter subject to removal sent of the Senate. The Tenure of
in was vetoed, but it was passed over
A. . . .

te of the foregoing Presidential declait is contended that since the passage tenure of Office Act, there has been a acquiescence by the Executive in zr of Congress to forbid the President ) remove executive officers, an ac

quiescence which has changed any formerly accepted constitutional construction to the contrary. Instances are cited of the signed approval by President Grant and other Presidents of legislation in derogation of such construction. We think these are all to be explained not by acquiescence therein, but by reason of the otherwise valuable effect of the legislation approved. Such is doubtless the explanation of the executive approval of the Act of 1867, which we are considering, for it was an appropriation act on which the section here in question was imposed as rider....
When, then, are the elements that enter into our decision of this case? We have first a construction of the Constitution made by a Congress which was to provide by legislation for the organization of the Government in accord with the Constitution which had just then been adopted, and in which there were, as representatives and senators, a considerable number of those who had been members of the Convention that framed the Constitution and presented it for ratification. It was the Congress that launched the Government. It was the Congress that rounded out the Constitution itself by the proposing of the first ten amendments which had in effect been promised to the people as a consideration for the ratification.... It was a Congress whose constitutional decisions have always been regarded as they should be regarded as of the greatest weight in the interpretation of that fundamental instrument. . . . We are now asked to set aside this construction thus buttressed and adopt an adverse view because the Congress of the United States did so during a heated political difference of opinion between the then President and the majority leaders of Congress over the reconstruction measures adopted as a means of restoring to their proper status the States which attempted to withdraw from the Union at the time of the Civil War.... When on the merits we find Our conclusions strongly favoring the view which prevailed in the First Congress, we have no hesitation in holding that conclusion to be correct; and it therefore follows that the Tenure of Office Act of 1867, in so far as it attempted to prevent the President from removing executive officers who had been appointed by him by and with the advice and consent of the Senate, was invalid and that

appointments and removals of inferior of officers after it has vested, and on condition
that it does vest, their appointment in other authority than the President with the Senate's
consent; that the provisions of the second
section of article 2, which blend action by the legislative branch, or by part of it, in the work of the executive, are limitations to be strictly construed and not to be extended by implication; that the President's power of removal is further established as an incident to his specifically enumerated function of appointment by and with the advice of the Senate, but that such incident does not by implication extend to removals of the Senate's power or checking appointment; and finally that to hold otherwise would make it impossible for the President in case of political or other difference with the Senate or Congress to take care that the laws be faithfully executed
We come now to a period in the history of the Government when both houses of Congress attempted to reverse this constitutional construction and to subject the power of re| moving executive officers appointed by the President and conformed by the Senate to the control of the Senate, indeed finally to the assumed power in Congress to place the removal of such officers anywhere in the Government.
This reversal grew out of the serious political dif&Mac245;erence between the two Houses of Congress and President Johnson.... The chief legislation in support of the reconstruction policy of Congress was the Tenure of Office Act of March 2, 1867, providing that all officers appointed by and with the consent of the Senate should hold their offices until their successors should have in like manner been appointed and qualified, that certain heads of departments, including the Secretary
. of War should hold their offices during the terms of the President by whom appointed
nd one month thereafter subject to removal by
consent of the Senate. The Tenure of Office Act was vetoed, but it was passed over the veto....
In spite of the foregoing Presidential declarations, it is contended that since the passage of the Tenure of Office Act, there has been a general acquiescence by the Executive in the power of Congress to forbid the President alo o remove executive officers, an acquiescence which has changed any formerly accepted constitutional construction to the contrary. Instances are cited of the signed approval by President Grant and other Presidents of legislation in derogation of such construction We think these are all to be explained not by acquiescence therein, but by reason of the otherwise valuable effect of the legislation approved. Such is doubtless the explanation of the executive approval of the Act of 1867, which we are considering, for it was an appropriation act on which the section here in question was imposed as rider....
When, then, are the elements that enter into our decision of this case? We have first a construction of the Constitution made by a Congress which was to provide by legislation for the organization of the Government in accord with the Constitution which had just then been adopted, and in which there were, as representatives and senators, a considerable number of those who had been members of the Convention that framed the Constitution and presented it for ratification. It was the Congress that launched the Government. It was the Congress that rounded out the Constitution itself by the proposing of the first ten amendments which had in effect been promised to the people as a consideration for the ratification.... It was a Congress whose constitutional decisions have always been regarded as they should be regarded as of the greatest weight in the interpretation of that fundamental instrument. . . . We are now asked to set aside this construction thus buttressed and adopt an adverse view because the Congress of the United States did so during a heated political difference of opinion between the then President and the majority leaders of Congress over the reconstruction measures adopted as a means of restoring to their proper status the States which attempted to withdraw from the Union at the time of the Civil War.... When on the merits we find our conclusions strongly favoring the view which prevailed in the First Congress, we have no hesitation in holding that conclusion to be correct; and it therefore follows that the Tenure of Office Act of 1867, in so far as it attempted to prevent the President from removing executive officers who had been appointed by him by and with the advice and consent of the Senate, was invalid and that
subsequent legislation to the same effect was equally so.
For the reasons given we must therefore hold that the provision of the law of 1876 by which the unrestricted power of removal of first class postmasters is denied to the President is in violation of the Constitution and invalid. This leads to an affirmation of the judgement of the Court of Claims....
HOLMES, J., dissenting.... The arguments (for the President's power of removal) drawn from the executive power of the President, and from his duty to appoint officers of the United States (when Congress does not vest the appointment elsewhere), to take care that the laws be faithfully executed, and to commission all officers of the United States, seem to me spider's webs inadequate to control the dominant facts.
We have to deal with an office that owes its existence to Congress and that Congress may
abolish tomorrow. Its duration and the pay l attached to it while it lasts depend on Congress alone. Congress alone confers on the President the power to appoint to it and l at any time may transfer the power to other hands. With such power over its own creation, I have no more trouble in believing that Congress has power to prescribe a term of I life for it free from any interference than I
have in accepting the undoubted power of Congress to decree its end. I have equally a little trouble in accepting its power to prolong the tenure of an incumbent until Congress or the Senate shall have assented to his removal. The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power.
MCREYNOLDS, J., and BRANDEIS, J., joined in
this dissent.