U.S. Supreme Court Myers v. United States, 272 U.S.
52 (1925) Myers v. United
States No. 2 Argued December 5,
1923 Reargued April 13, 14,
1925 Decided October 25,
1926 272 U.S.
52 APPEAL FROM THE COURT OF
CLAIMS Syllabus 1. A postmaster who was removed from office petitioned the
President and the Senate committee on Post Offices for a hearing on
any charges filed; protested to the Post Office Department;
and, Page 272 U. S. 53 three months before his four-year term expired, having pursued
no other occupation and derived no compensation for other service
in the interval, began suit in the Court of Claims for salary since
removal. No notice of the removal, nor any nomination of a
successor, had been sent in the meantime to the Senate whereby his
case could have been brought before that body, and the commencement
of suit was within a month after the ending of its last session
preceding the expiration of the four years. Held that the
plaintiff was not guilty of laches. P. 272 U. S.
107 .

															2. Section 6 of the Act of July 12, 1876, providing 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,"

															is unconstitutional in its attempt to make the President's power
of removal dependent upon consent of the Senate. Pp. 272 U. S. 107 , 272 U. S.
176 .

															3. The President is empowered by the Constitution to remove any
executive officer appointed by him by and with the advice and
consent of the Senate, and this power is not subject in its
exercise to the assent of the Senate, nor can it be made so by an
act of Congress. Pp. 272 U. S. 119 , 272 U. S.
125 .

															4. The provision of Art. II, § 1, of the Constitution that "the
Executive power shall be vested in a President" is a grant of the
power, and not merely a naming of a department of the government.
Pp. 272 U. S. 151 , 272 U. S.
163 .

															5. The provisions of Art. II, § 2, which blend action by the
legislative branch, or by part of it, in the work of the Executive,
are limitations upon this general grant of the Executive power
which are to be strictly construed, and not to be extended by
implication. P. 272 U. S.
164 .

															6. It is a canon of interpretation that real effect should be
given to all the words of the Constitution. P. 272 U. S.
151 .

															7. Removal of executive officials from office is an executive
function; the power to remove, like the power to appoint, is part
of "the Executive power," -- a conclusion which is confirmed by the
obligation "to take care that the laws be faithfully executed." Pp. 272 U. S. 161 , 272 U. S.
164 .

															8. The power of removal is an incident of the power to appoint;
but such incident does not extend the Senate's power of checking
appointments, to removals. Pp. 272 U. S. 119 , 272 U. S. 121 , 272 U. S. 126 , 272 U. S.
161 .

															9. The excepting clause in § 2 of Art. II, providing

															"but Congress may by law vest the appointment of such inferior
officers Page 272 U. S. 54 as they may think proper in the President alone, in the courts
of law or in the heads of departments,"

															does not enable Congress to regulate the removal of inferior
officers appointed by the President by and with the advice and
consent of the Senate. Pp. 272 U. S. 158 -161.

															10. A contemporaneous legislative exposition of the Constitution
when the founders of our Government and framers of the Constitution
were actively participating in public affairs, acquiesced in for
many years, fixes the meaning of the provisions so construed. P. 272 U. S.
175 .

															11. Upon an historical examination of the subject, the Court
finds that the action of the First Congress, in 1789, touching the
Bill to establish a Department of Foreign Affairs, was a clean-cut
and deliberate construction of the Constitution as vesting in the
President alone the power to remove officers, inferior as well as
superior, appointed by him with the consent of the Senate; that
this construction was acquiesced in by all branches of the
Government for 73 years, and that subsequent attempts of Congress,
through the Tenure of Office Act of March 2, 1867, and other acts
of that period, to reverse the construction of 1789 by subjecting
the President's power to remove executive officers appointed by him
and confirmed by the Senate to the control of the Senate or lodge
such power elsewhere in the Government were not acquiesced in, but
their validity was denied by the Executive whenever any real issue
over it arose. Pp. 272 U. S. 111 , 272 U. S.
164 -176.

															12. The weight of congressional legislation as supporting a
particular construction of the Constitution by acquiescence depends
not only upon the nature of the question, but also upon the
attitude of the executive and judicial branches of the government
and the number of instances in the execution of the law in which
opportunity for objection in the courts or elsewhere has been
afforded. P. 272 U. S.
170 .

															13. The provisions of the Act of May 15, 1820, for removal of
the officers therein named "at pleasure," were not based on the
assumption that, without them, the President would not have that
power, but were inserted in acquiescence to the legislative
decision of 1789. P. 272 U. S.
146 .

															14. Approval by the President of acts of Congress containing
provisions purporting to restrict the President's constitutional
power of removing officers held not proof of Executive
acquiescence in such curtailment where the approval was explicable
by the value of the legislation in other respects -- as where the
restriction was in a rider imposed on an appropriation act. P. 272 U. S.
170 . Page 272 U. S. 55 15. Marbury v.
Madison , 1 Cranch 137, considered, in connection
with Parsons v. United States, 167 U.
S. 324 , and held not authoritative on the
question of removal power here involved. Pp. 272 U. S.
139 -144, 272 U. S.
158 . ----- The questions (1) whether a judge appointed by the President
with the consent of the Senate under an act of Congress, not under
authority of Art. III of the Constitution, can be removed by the
President alone without the consent of the Senate; (2), whether the
legislative decision of 1789 covers such a case, and (3), whether
Congress may provide for his removal in some other way, present
considerations different from those which apply in the removal of
executive officers, and are not herein decided. Pp. 272 U. S.
154 -158.

															This Court has recognized ( United States v. Perkins, 116 U. S. 483 )
that Congress may prescribe incidental regulations controlling and
restricting the heads of departments in the exercise of the power
of removal; but it has never held, and could not reasonably hold,
that the excepting clause enables Congress to draw to itself, or to
either branch of it, the power to remove or the right to
participate in the exercise of that power. To do this would be to
go beyond the words and implications of that clause and to infringe
the constitutional principle of the separation of govern mental
powers. P. 272 U. S.
161 .

															Assuming the power of Congress to regulate removals as
incidental to the exercise of its constitutional power to vest
appointments of inferior officers in the heads of departments,
certainly so long as Congress does not exercise that power, the
power of removal must remain where the Constitution places it --
with the President, as part of the executive power, in accordance
with the legislative decision of 1789. P. 272 U. S.
161 .

															Whether the action of Congress in removing the necessity for the
advice and consent of the Senate, and putting the power of
appointment in the President alone, would make his power of removal
in such case any more subject to Congressional legislation than
before is a question not heretofore decided by this Court and not
presented or decided in this case. P. 272 U. S.
161 .

															Congress is only given power to provide for appointments and
removals of inferior officers after it has vested, and on condition
that it does vest, their appointment in other authority than the
President with the Senate's consent. P. 272 U. S.
164 .

															58 Ct.Cls. 199, affirmed. Page 272 U. S. 56 APPEAL from a judgment of the Court of Claims rejecting a claim
for salary. Appellant's intestate, Frank S. Myers, was reappointed
by the President, by and with the advice and consent of the Senate,
as a postmaster of the first class. The Act of July, 1876, § 6, c.
179, 19 Stat. 80, provides that such postmasters shall hold office
for four years, unless sooner removed or suspended according to
law, and provides that they may be removed by the President "by and
with the advice and consent of the Senate." Myers was removed,
before the expiration of his term, by an order of the Postmaster
General, sanctioned by the President. The removal was not referred
to the Senate, either directly or through nomination of a
successor, during the four-year period. Judgment of the Court below
that Myers could not claim salary for the part of that period
following the removal was based on the view that there had been
laches in asserting the claim. The appeal was argued and submitted
by counsel for the appellant on December 5, 1924. On January 5,
1925, the Court restored the case for reargument. It invited the
Honorable George Wharton Pepper, United States Senator from
Pennsylvania, to participate as amicus curiae. The
reargument occurred on April 13, 14, 1925. In view of the great
importance of the matter, the Reporter has deemed it advisable to
print, in part, the oral arguments, in addition to summaries of the
briefs. [Oral arguments and briefs omitted.] Page 272 U. S. 106 MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.

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

															Myers, appellant's intestate, was, on July 21, 1917, appointed
by the President, by and with the advice and consent of the Senate,
to be a postmaster of the first class at Portland, Oregon, for a
term of four years. On January 20, 1920, Myers' resignation was
demanded. He refused the demand. On February 2, 1920, he was
removed from office by order of the Postmaster General, acting by
direction of the President. February 10th, Myers sent a petition to
the President and another to the Senate Committee on Post Offices,
asking to be heard if any charges were filed. He protested to the
Department against his removal, and continued to do so until the
end of his term. He pursued no other occupation, and drew
compensation for no other service during the interval. On April 21,
1921, he brought this suit in the Court of Claims for his salary
from the date of his removal, which, as claimed by supplemental
petition filed after July 21, 1921, the end of his term, amounted
to $8,838.71. In August, 1920, the President made a recess
appointment of one Jones, who took office September 19, 1920. Page 272 U. S. 107 The Court of Claims gave judgment against Myers, and this is an
appeal from that judgment. The Court held that he had lost his
right of action because of his delay in suing, citing Arant v.
Lane, 249 U. S. 367 ; Nicholas v. United States, 257 U. S.
71 , and Norris v. United States, 257 U. S.
77 . These cases show that, when a United States officer
is dismissed, whether in disregard of the law or from mistake as to
the facts of his case, he must promptly take effective action to
assert his rights. But we do not find that Myers failed in this
regard. He was constant in his efforts at reinstatement. A hearing
before the Senate Committee could not be had till the notice of his
removal was sent to the Senate or his successor was nominated. From
the time of his removal until the end of his term, there were three
sessions of the Senate without such notice or nomination. He put
off bringing his suit until the expiration of the Sixty-sixth
Congress, March 4, 1921. After that, and three months before his
term expired, he filed his petition. Under these circumstances, we
think his suit was not too late. Indeed, the Solicitor General,
while not formally confessing error in this respect, conceded at
the bar that no laches had been shown.

															By the 6th section of the Act of Congress of July 12, 1876, 19
Stat. 80, 81, c. 179, under which Myers was appointed with the
advice and consent of the Senate as a first-class postmaster, it is
provided that

															"Postmasters of the first, second and third classes shall be
appointed and may be removed by the President by and with the
advice and consent of the Senate and shall hold their offices for
four years unless sooner removed or suspended according to
law."

															The Senate did not consent to the President's removal of Myers
during his term. If this statute, in its requirement that his term
should be four years unless sooner removed by the President by and
with the consent of the Page 272 U. S. 108 Senate, is valid, the appellant, Myers' administratrix, is
entitled to recover his unpaid salary for his full term, and the
judgment of the Court of Claims must be reversed. The Government
maintains that the requirement is invalid for the reason that,
under Article II of the Constitution the President's power of
removal of executive officers appointed by him with the advice and
consent of the Senate is full and complete without consent of the
Senate. If this view is sound, the removal of Myers by the
President without the Senate's consent was legal, and the judgment
of the Court of Claims against the appellant was correct, and must
be affirmed, though for a different reason from that given by that
court. We are therefore confronted by the constitutional question,
and cannot avoid it.

															The relevant parts of Article II of the Constitution are as
follows:

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

															"Section 2. The President shall be Commander in Chief of the
Army and Navy of the United States, and of the Militia of the
several States, when called into the actual Service of the United
States; he may require the Opinion, in writing, of the principal
Officer in each of the executive Departments upon any subject
relating to the duties of their respective Offices, and he shall
have Power to grant Reprieves and Pardons for Offences against the
United States, except in Cases of Impeachment."

															"He shall have Power, by and with the Advice and Consent of the
Senate, to make Treaties, provided two thirds of the Senators
present concur, and he shall nominate, and by and with the Advice
and Consent of the Senate, shall appoint Ambassadors, other public
Ministers and Consuls, Judges of the Supreme Court, and all other
Officers of the United States whose Appointments are not herein
otherwise provided for, and which shall be established Page 272 U. S. 109 by Law: but the Congress may by Law vest the Appointment of such
inferior Officers, as they think proper, in the President alone, in
the Courts of Law, or in the Heads of Departments."

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

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

															"Section 4. The President, Vice President and all civil Officers
of the United States shall be removed from Office on Impeachment
for, and Conviction of, Treason, Bribery, or other High Crimes and
Misdemeanors."

															Section 1 of Article III, provides:

															"The judicial power of the United States shall be vested in one
Supreme Court and in such inferior courts as the Congress may from
time to time ordain and establish. The judges, both of the Supreme
and inferior Courts, shall hold their offices during good behavior.
. . ."

															The question where the power of removal of executive officers
appointed by the President by and with the advice and consent of
the Senate was vested was presented early in the first session of
the First Congress. There is no express provision respecting
removals in the Constitution, except as Section 4 of Article II,
above quoted, provides for removal from office by impeachment. The
subject Page 272 U. S. 110 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 Page 272 U. S. 111 Senate, and the other placing the election of the President not
in Congress, as once voted, but in an electoral college in which
the influence of larger States in the selection would be more
nearly in proportion to their population -- the smaller States, led
by Roger Sherman, fearing that, under the second compromise, the
President would constantly be chosen from one of the larger States,
secured a change by which the appointment of all officers, which
theretofore had been left to the President without restriction, was
made subject to the Senate's advice and consent, and the making of
treaties and the appointments of ambassadors, public ministers,
consuls and judges of the Supreme Court were transferred to the
President, but made subject to the advice and consent of the
Senate. This third compromise was effected in a special committee
in which Gouverneur Morris of Pennsylvania represented the larger
States and Roger Sherman the smaller States. Although adopted
finally without objection by any State in the last days of the
Convention, members from the larger States, like Wilson and others,
criticized this limitation of the President's power of appointment
of executive officers and the resulting increase of the power of
the Senate. 2 Farrand, 537, 538, 539.

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

															"The question was now taken and carried, by a considerable
majority, in favor Page 272 U. S. 112 of declaring the power of removal to be in the President."

															1 Annals of Congress, 383.

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

															On June 22, in the renewal of the discussion,

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

															1 Annals of Congress, 578.

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

															1 Annals of Congress, 579. Page 272 U. S. 113 "Mr. Benson declared, if he succeeded in this amendment, he
would move to strike out the words in the first clause, 'to be
removable by the President' which appeared somewhat like a grant.
Now, the mode he took would evade that point and establish a
legislative construction of the Constitution. He also hoped his
amendment would succeed in reconciling both sides of the House to
the decision, and quieting the minds of gentlemen."

															1 Annals of Congress, 578.

															Mr. Madison admitted the objection made by the gentleman near
him (Mr. Benson) to the words in the bill. He said:

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

															1 Annals of Congress, 578, 579.

															Mr. Benson's first amendment to alter the second clause by the
insertion of the italicized words, made that clause to read as
follows:

															"That there shall be in the State Department an inferior officer
to be appointed by the said principal officer, and to be employed
therein as he shall deem proper, to be called the Chief Clerk in
the Department of Foreign Affairs, and who, whenever the
principal officer shall be removed from office by the President of
the United States, or in any other case of vacancy, shall,
during such vacancy, Page 272 U. S. 114 have charge and custody of all records, books and papers
appertaining to said department."

															The first amendment was then approved by a vote of thirty to
eighteen. 1 Annals of Congress, 580. Mr. Benson then moved to
strike out in the first clause the words "to be removable by the
President," in pursuance of the purpose he had already declared,
and this second motion of his was carried by a vote of thirty-one
to nineteen. 1 Annals of Congress, 585.

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

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

															The discussion was a very full one. Fourteen out of the
twenty-nine who voted for the passage of the bill, and eleven of
the twenty-two who voted against the bill, took part in the
discussion. Of the members of the House, eight had been in the
Constitutional Convention, and, of these, six voted with the
majority, and two, Roger Sherman and Eldridge Gerry, the latter of
whom had refused to sign the Constitution, voted in the minority.
After Page 272 U. S. 115 the bill as amended had passed the House, it was sent to the
Senate, where it was discussed in secret session, without report.
The critical vote there was upon the striking out of the clause
recognizing and affirming the unrestricted power of the President
to remove. The Senate divided by ten to ten, requiring the deciding
vote of the Vice-President, John Adams, who voted against striking
out, and in favor of the passage of the bill as it had left the
House. * Ten of the
Senators had been in the Constitutional Convention, and, of them,
six voted that the power of removal was in the President alone. The
bill, having passed as it came from the House, was signed by
President Washington and became a law. Act of July 27, 1789, 1
Stat. 28, c. 4.

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

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

															First. Mr. Madison insisted that Article II, by vesting the
executive power in the President, was intended to grant to him the
power of appointment and removal of executive officers except as
thereafter expressly provided in that Article. He pointed out that
one of the chief Page 272 U. S. 116 purposes of the Convention was to separate the legislative from
the executive functions. He said:

															"If there is a principle in our Constitution, indeed in any free
Constitution, more sacred than another, it is that which separates
the Legislative, Executive and Judicial powers. If there is any
point in which the separation of the Legislative and Executive
powers ought to be maintained with great caution, it is that which
relates to officers and offices."

															1 Annals of Congress, 581.

															Their union under the Confederation had not worked well, as the
members of the convention knew. Montesquieu's view that the
maintenance of independence as between the legislative, the
executive, and the judicial branches was a security for the people
had their full approval. Madison in the Convention, 2 Farrand,
Records of the Federal Convention, 56. Kendall v.
United States , 12 Peters 524, 37 U. S. 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 , 102 U. S. 515 ; Kilbourn v. Thompson, 103 U. S. 168 , 103 U. S. 190 ; Mugler v. Kansas, 123 U. S. 623 , 123 U. S.
662 .

															The debates in the Constitutional Convention indicated an
intention to create a strong Executive, and, after a controversial
discussion, the executive power of the Government was vested in one
person and many of his important functions were specified so as to
avoid the Page 272 U. S. 117 humiliating weakness of the Congress during the Revolution and
under the Articles of Confederation. 1 Farrand, 66-97.

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

															The vesting of the executive power in the President was
essentially a grant of the power to execute the laws. But the
President, alone and unaided, could not execute the laws. He must
execute them by the assistance of subordinates. This view has since
been repeatedly affirmed by this Court. Wilcox v.
Jackson , 13 Peters 498, 38 U. S. 513 ; United States v.
Eliason , 16 Peters 291, 302; Williams
v. United States , 1 How. 290, 42 U. S. 297 ; Cunningham v. Neagle, 135 U. S. 1 , 135 U. S. 63 ; Russell Co. v. United States, 261 U.
S. 514 , 261 U. S. 523 .
As he is charged specifically to take care that they be faithfully
executed, the reasonable implication, even in the absence of
express words, was that, as part of his executive power, he should
select those who were to act for him under his direction in the
execution of the laws. The further implication must be, in the
absence of any express limitation respecting removals, that, as his
selection of administrative officers is essential to the execution
of the laws by him, so must be his power of removing those for whom
he cannot continue to be responsible. Fisher Ames, 1 Annals of
Congress, 474. It was urged that the natural meaning of the term
"executive power" granted the President included the appointment
and removal of executive subordinates. If such appointments and
removals were not an exercise of the executive power, what were
they? They certainly Page 272 U. S. 118 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 , 267 U. S. 110 .
Unlike the power of conquest of the British Crown, considered and
rejected as a precedent for us in Fleming v.
Page , 9 How. 603, 618, the association of removal
with appointment of executive officers is not incompatible with our
republican form of Government.

															The requirement of the second section of Article II that the
Senate should advise and consent to the Presidential appointments,
was to be strictly construed. The words of section 2, following the
general grant of executive power under section 1, were either an
enumeration and emphasis of specific functions of the Executive,
not all-inclusive, or were limitations upon the general grant of
the executive power, and, as such, being limitations, should not be
enlarged beyond the words used. Madison, 1 Annals, 462, 463, 464.
The executive power was given in general terms, strengthened by
specific terms where emphasis was regarded as appropriate, and was
limited by direct expressions where limitation was needed, and the
fact that no express limit was placed on the power of removal by
the Executive was convincing indication that none was intended.
This is the same construction of Article II as that of Alexander
Hamilton quoted infra. Page 272 U. S. 119 Second. The view of Mr. Madison and his associates was that not
only did the grant of executive power to the President in the first
section of Article II carry with it the power of removal, but the
express recognition of the power of appointment in the second
section enforced this view on the well approved principle of
constitutional and statutory construction that the power of removal
of executive officers was incident to the power of appointment. It
was agreed by the opponents of the bill, with only one or two
exceptions, that, as a constitutional principle, the power of
appointment carried with it the power of removal. Roger Sherman, 1
Annals of Congress, 491. This principle, as a rule of
constitutional and statutory construction then generally conceded,
has been recognized ever since. Ex parte
Hennen , 13 Peters 230, 38 U. S. 259 ; Reagan v. United States, 182 U. S. 419 ; Shurtleff v. United States, 189 U.
S. 311 , 189 U. S. 315 .
The reason for the principle is that those in charge of and
responsible for administering functions of government who select
their executive subordinates need, in meeting their responsibility,
to have the power to remove those whom they appoint.

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

															The history of the clause by which the Senate was given a check
upon the President's power of appointment makes it clear that it
was not prompted by any desire to limit removals. As already
pointed out, the important purpose of those who brought about the
restriction was to lodge in the Senate, where the small States had
equal Page 272 U. S. 120 representation with the larger States, power to prevent the
President from making too many appointments from the larger States.
Roger Sherman and Oliver Ellsworth, delegates from Connecticut,
reported to its Governor:

															"The equal representation of the States in the Senate and the
voice of that branch in the appointment to offices will secure the
rights of the lesser as well as of the greater States."

															3 Farrand, 99. The formidable opposition to the Senate's veto on
the President's power of appointment indicated that, in construing
its effect, it should not be extended beyond its express
application to the matter of appointments. This was made apparent
by the remarks of Abraham Baldwin, of Georgia, in the debate in the
First Congress. He had been a member of the Constitutional
Convention. In opposing the construction which would extend the
Senate's power to check appointments to removals from office, he
said:

															"I am well authorized to say that the mingling of the powers of
the President and Senate was strongly opposed in the Convention
which had the honor to submit to the consideration of the United
States and the different States the present system for the
government of the Union. Some gentlemen opposed it to the last, and
finally it was the principal ground on which they refused to give
it their signature and assent. One gentleman called it a monstrous
and unnatural connexion, and did not hesitate to affirm it would
bring on convulsions in the government. This objection was not
confined to the walls of the Convention; it has been subject of
newspaper declamation, and perhaps justly so. Ought we not,
therefore, to be careful not to extend this unchaste connexion any
further?"

															1 Annals of Congress, 557.

															Madison 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 Page 272 U. S. 121 on the mingling of the executive and legislative branches of the
Government in one body. It has been objected that the Senate have
too much of the executive power even, by having control over the
President in the appointment to office. Now shall we extend this
connexion between the legislative and executive departments which
will strengthen the objection and diminish the responsibility we
have in the head of the Executive?"

															1 Annals of Congress, 380.

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

															The power to prevent the removal of an officer who has served
under the President is different from the authority to consent to
or reject his appointment. When a nomination is made, it may be
presumed that the Senate is, or may become, as well advised as to
the fitness of the nominee Page 272 U. S. 122 as the President, but, in the nature of things, the defects in
ability or intelligence or loyalty in the administration of the
laws of one who has served as an officer under the President are
facts as to which the President, or his trusted subordinates, must
be better informed than the Senate, and the power to remove him
may, therefore, be regarded as confined, for very sound and
practical reasons, to the governmental authority which has
administrative control. The power of removal is incident to the
power of appointment, not to the power of advising and consenting
to appointment, and when the grant of the executive power is
enforced by the express mandate to take care that the laws be
faithfully executed, it emphasizes the necessity for including
within the executive power as conferred the exclusive power of
removal.

															Oliver Ellsworth was a member of the Senate of the First
Congress, and was active in securing the imposition of the Senate
restriction upon appointments by the President. He was the author
of the Judiciary Act in that Congress, and subsequently Chief
Justice of the United States. His view as to the meaning of this
article of the Constitution, upon the point as to whether the
advice of the Senate was necessary to removal, like that of
Madison, formed and expressed almost in the very atmosphere of the
Convention, was entitled to great weight. What he said in the
discussion in the Senate was reported by Senator William Patterson,
2 Bancroft, History of the Constitution of the United States, 192,
as follows:

															"The three distinct powers, legislative, judicial and executive,
should be placed in different hands. 'He shall take care that the
laws be faithfully executed' are sweeping words. The officers
should be attentive to the President to whom the Senate is not a
council. To turn a man out of office is an exercise neither of
legislative nor of judicial power; it is like a tree growing upon
land that has been granted. The advice of the Senate does not make
the appointment. The President appoints. There Page 272 U. S. 123 are certain restrictions in certain cases, but the restriction
is as to the appointment, and not as to the removal."

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

															Another argument advanced in the First Congress against implying
the power of removal in the President alone from its necessity in
the proper administration of the executive power was that all
embarrassment in this respect could be avoided by the President's
power of suspension of officers, disloyal or incompetent, until the
Senate could act. To this, Mr. Benson, said:

															"Gentlemen ask, will not the power of suspending an officer be
sufficient to prevent mal-conduct? Here is some Page 272 U. S. 124 inconsistency in their arguments. They declare that Congress
have no right to construe the Constitution in favor of the
President with respect to removal; yet they propose to give a
construction in favor of the power of suspension being exercised by
him. Surely gentlemen do not pretend that the President has the
power of suspension granted expressly by the Constitution; if they
do, they have been more successful in their researches into that
instrument than I have been. If they are willing to allow a power
of suspending, it must be because they construe some part of the
Constitution in favor of such a grant. The construction in this
case must be equally unwarrantable. But admitting it proper to
grant this power, what then? When an officer is suspended, does the
place become vacant? May the President proceed to fill it up? Or
must the public business be likewise suspended? When we say an
officer is suspended, it implies that the place is not vacant; but
the parties may be heard, and, after the officer is freed from the
objections that have been taken to his conduct, he may proceed to
execute the duties attached to him. What would be the consequence
of this? If the Senate, upon its meeting, were to acquit the
officer, and replace him in his station, the President would then
have a man forced on him whom he considered as unfaithful, and
could not, consistent with his duty, and a proper regard to the
general welfare, go so far as to entrust him with full
communications relative to the business of his department. Without
a confidence in the Executive department, its operations would be
subject to perpetual discord, and the administration of the
Government become impracticable."

															1 Annals of Congress, 506.

															Mr. Vining said:

															"The Departments of Foreign Affairs and War are peculiarly
within the powers of the President, and he must be responsible for
them; but take away his controlling power, and upon what principle
do you require his responsibility? " Page 272 U. S. 125 "The gentlemen say the President may suspend. They were asked if
the Constitution gave him this power any more than the other? Do
they contend the one to be a more inherent power than the other? If
they do not, why shall it be objected to us that we are making a
Legislative construction of the Constitution, when they are
contending for the same thing?"

															1 Annals of Congress, 512.

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

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

															Mr. Madison, mistakenly thinking that an argument like this was
advanced by Roger Sherman, took it up and answered it as
follows:

															"He seems to think (if I understand him rightly) that the power
of displacing from office is subject to Legislative discretion,
because, having a right to create, it may limit or modify as it
thinks proper. I shall not say but at first view this doctrine may
seem to have some plausibility. But when I consider that the
Constitution clearly intended to maintain a marked distinction
between the Legislative, Executive, and Judicial powers of
Government, and when I consider that, if the Legislature has a
power such as is contended for, they may subject and transfer at
discretion powers from one department of our Government to another;
they may, on that principle, Page 272 U. S. 126 exclude the President altogether from exercising any authority
in the removal of officers; they may give [it] to the Senate alone,
or the President and Senate combined; they may vest it in the whole
Congress; or they may reserve it to be exercised by this house.
When I consider the consequences of this doctrine, and compare them
with the true principles of the Constitution, I own that I cannot
subscribe to it. . . ."

															1 Annals of Congress, 495, 496.

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

															The constitutional construction that excludes Congress from
legislative power to provide for the removal of superior officers
finds support in the second section of Article II. By it, the
appointment of all officers, whether superior or inferior, by the
President is declared to be subject to the advice and consent of
the Senate. In the absence of any specific provision to the
contrary, the power of appointment to executive office carries with
it, as a necessary incident, the power of removal. Whether the
Senate must concur in the removal is aside from the point we now
are considering. That point is that, by the specific constitutional
provision for appointment of executive officers, with its necessary
incident of removal, the power of appointment and removal is
clearly provided for by Page 272 U. S. 127 the Constitution, and the legislative power of Congress in
respect to both is excluded save by the specific exception as to
inferior offices in the clause that follows, viz., "but the Congress may by law vest the appointment of such
inferior officers, as they think proper, in the President alone, in
the Courts of Law, or in the Heads of Departments."

															These words, it has been held by this Court, give to Congress
the power to limit and regulate removal of such inferior officers
by heads of departments when it exercises its constitutional power
to lodge the power of appointment with them. United States v.
Perkins, 116 U. S. 483 , 116 U. S. 485 .
Here, then, is an express provision, introduced in words of
exception, for the exercise by Congress of legislative power in the
matter of appointments and removals in the case of inferior
executive officers. The phrase "But Congress may by law vest" is
equivalent to "excepting that Congress may by law vest." By the
plainest implication, it excludes Congressional dealing with
appointments or removals of executive officers not falling within
the exception, and leaves unaffected the executive power of the
President to appoint and remove them.

															A reference of the whole power of removal to general legislation
by Congress is quite out of keeping with the plan of government
devised by the framers of the Constitution. It could never have
been intended to leave to Congress unlimited discretion to vary
fundamentally the operation of the great independent executive
branch of government, and thus most seriously to weaken it. It
would be a delegation by the Convention to Congress of the function
of defining the primary boundaries of another of the three great
divisions of government. The inclusion of removals of executive
officers in the executive power vested in the President by Article
II, according to its usual definition, and the implication of his
power of removal of such officers from the provision of section 2
expressly recognizing in him the power of their appointment, Page 272 U. S. 128 are a much more natural and appropriate source of the removing
power.

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

															It is argued that the denial of the legislative power to
regulate removals in some way involves the denial of power to
prescribe qualifications for office, or reasonable classification
for promotion, and yet that has been often exercised. We see no
conflict between the latter power and that of appointment and
removal, provided, of course, that the qualifications do not so
limit selection and so trench upon executive choice as to be, in
effect, legislative designation. As Mr. Madison said in the First
Congress:

															"The powers relative to offices are partly Legislative and
partly Executive. The Legislature creates the office, defines the
powers, limits its duration, and annexes a compensation. This done,
the Legislative power ceases. They ought to have nothing to do with
designating the man to fill the office. That I conceive to be of an
Executive nature. Although it be qualified in the Constitution, I
would not extend or strain that qualification beyond the limits
precisely fixed for it. We ought always to consider Page 272 U. S. 129 the Constitution with an eye to the principles upon which it was
founded. In this point of view, we shall readily conclude that, if
the Legislature determines the powers, the honors, and emoluments
of an office, we should be insecure if they were to designate the
officer also. The nature of things restrains and confines the
Legislative and Executive authorities in this respect, and hence it
is that the Constitution stipulates for the independence of each
branch of the Government."

															1 Annals of Congress, 581, 582.

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

															An argument in favor of full Congressional power to make or
withhold provision for removals of all appointed by the President
is sought to be found in an asserted analogy between such a power
in Congress and its power in the establishment of inferior federal
courts. By Article III, the judicial power of the United States is
vested in one Supreme Court and in such inferior courts as the
Congress may from time to time establish. By section 8 of Article
I, also, Congress is given power to constitute tribunals inferior
to the Supreme Court. By the second section, the judicial power is
extended to all cases in law and equity under this Constitution and
to a substantial number of other classes of cases. Under the
accepted Page 272 U. S. 130 construction, the cases mentioned in this section are treated as
a description and reservoir of the judicial power of the United
States and a boundary of that federal power as between the United
States and the States, and the field of jurisdiction within the
limits of which Congress may vest particular jurisdiction in anyone
inferior federal court which it may constitute. It is clear that
the mere establishment of a federal inferior court does not vest
that court with all the judicial power of the United States as
conferred in the second section of Article III, but only that
conferred by Congress specifically on the particular court. It must
be limited territorially and in the classes of cases to be heard,
and the mere creation of the court does not confer jurisdiction
except as it is conferred in the law of its creation or its
amendments. It is said that, similarly, in the case of the
executive power which is "vested in the President," the power of
appointment and removal cannot arise until Congress creates the
office and its duties and powers, and must accordingly be exercised
and limited only as Congress shall, in the creation of the office,
prescribe.

															We think there is little or no analogy between the two
legislative functions of Congress in the cases suggested. The
judicial power described in the second section of Article III is
vested in the courts collectively, but is manifestly to be
distributed to different courts and conferred or withheld as
Congress shall, in its discretion, provide their respective
jurisdictions, and is not all to be vested in one particular court.
Any other construction would be impracticable. The duty of
Congress, therefore, to make provision for the vesting of the whole
federal judicial power in federal courts, were it held to exist,
would be one of imperfect obligation, and unenforceable. On the
other hand, the moment an office and its powers and duties are
created, the power of appointment and removal, as limited by the
Constitution, vests in the Executive. Page 272 U. S. 131 The functions of distributing jurisdiction to courts, and the
exercise of it when distributed and vested, are not at all parallel
to the creation of an office, and the mere right of appointment to,
and of removal from, the office, which at once attaches to the
Executive by virtue of the Constitution.

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

															As Mr. Madison said in the debate in the First Congress:

															"Vest this power in the Senate jointly with the President, and
you abolish at once that great principle of unity and
responsibility in the Executive department which was intended for
the security of liberty and the public good. If the President
should possess alone the power of removal from office, those who
are employed in the execution of the law will be in their proper
situation, and the chain of dependence be preserved, the lowest
officers, the middle grade, and the highest, will depend, as they
ought, on the President, and the President on the community."

															1 Annals of Congress, 499.

															Mr. Boudinot of New Jersey said upon the same point:

															"The supreme Executive officer against his assistant, and the
Senate are to sit as judges to determine whether sufficient cause
of removal exists. Does not this set the Senate over the head of
the President? But suppose they Page 272 U. S. 132 shall decide in favor of the officer, what a situation is the
President then in, surrounded by officers with whom, by his
situation, he is compelled to act, but in whom he can have no
confidence, reversing the privilege given him by the Constitution
to prevent his having officers imposed upon him who do not meet his
approbation? "

															1 Annals of Congress, 468.

															Mr. Sedgwick of Massachusetts asked the question:

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

															1 Annals of Congress, 522.

															Made responsible under the Constitution for the effective
enforcement of the law, the President needs as an indispensable aid
to meet it the disciplinary influence upon those who act under him
of a reserve power of removal. But it is contended that executive
officers appointed by the President with the consent of the Senate
are bound by the statutory law, and are not his servants to do his
will, and that his obligation to care for the faithful execution of
the laws does not authorize him to treat them as such. The degree
of guidance in the discharge of their duties that the President may
exercise over executive officers varies with the character of their
service as prescribed in the law under which they act. The highest
and most important duties which his subordinates perform are those
in which they act for him. In such cases, they are exercising not
their own, but his, discretion. This field is a very large one. It
is sometimes described as political. Kendall v.
United States , 12 Page 272 U. S. 133 Peters 524 at p. 37 U. S. 610 .
Each head of a department is and must be the President's alter ego
in the matters of that department where the President is required
by law to exercise authority.

															The extent of the political responsibility thrust upon the
President is brought out by Mr. Justice Miller, speaking for the
Court in Cunningham v. Neagle, 135 U. S.
1 at p. 135 U. S. 63 :

															"The Constitution, section 3, Article 2, declares that the
President 'shall take care that the laws be faithfully executed,'
and he is provided with the means of fulfilling this obligation by
his authority to commission all the officers of the United States,
and by and with the advice and consent of the Senate to appoint the
most important of them and to fill vacancies. He is declared to be
commander in chief of the army and navy of the United States. The
duties which are thus imposed upon him he is further enabled to
perform by the recognition in the Constitution, and the creation by
Acts of Congress, of executive departments, which have varied in
number from four or five to seven or eight, the heads of which are
familiarly called cabinet ministers. These aid him in the
performance of the great duties of his office and represent him in
a thousand acts to which it can hardly be supposed his personal
attention is called, and thus he is enabled to fulfill the duty of
his great department, expressed in the phrase that 'he shall take
care that the laws be faithfully executed.'"

															He instances executive dealings with foreign governments, as in
the case of Martin Koszta, and he might have added the Jonathan
Robbins case as argued by John Marshall in Congress, 5 Wheat.
Appendix 1, and approved by this Court in Fong Yue Ting v.
United States, 149 U. S. 698 , 149 U. S. 714 .
He notes the President's duty as to the protection of the mails, as
to which the case of In re Debs, 158 U.
S. 564 , 158 U. S.
582 -584 affords an illustration. He Page 272 U. S. 134 instances executive obligation in protection of the public
domain, as in United States v. San Jacinto Tin Co., 125 U. S. 273 , and United States v.
Hughes , 11 How. 552. The possible extent of the
field of the President's political executive power may be judged by
the fact that the quasi -civil governments of Cuba, Porto
Rico and the Philippines, in the silence of Congress, had to be
carried on for several years solely under his direction as
commander in chief.

															In all such cases, the discretion to be exercised is that of the
President in determining the national public interest and in
directing the action to be taken by his executive subordinates to
protect it. In this field, his cabinet officers must do his will.
He must place in each member of his official family, and his chief
executive subordinates, implicit faith. The moment that he loses
confidence in the intelligence, ability, judgment or loyalty of
anyone of them, he must have the power to remove him without delay.
To require him to file charges and submit them to the consideration
of the Senate might make impossible that unity and coordination in
executive administration essential to effective action.

															The duties of the heads of departments and bureaus in which the
discretion of the President is exercised and which we have
described are the most important in the whole field of executive
action of the Government. There is nothing in the Constitution
which permits a distinction between the removal of the head of a
department or a bureau, when he discharges a political duty of the
President or exercises his discretion, and the removal of executive
officers engaged in the discharge of their other normal duties. The
imperative reasons requiring an unrestricted power to remove the
most important of his subordinates in their most important duties
must, therefore, control the interpretation of the Constitution as
to all appointed by him. Page 272 U. S. 135 But this is not to say that there are not strong reasons why the
President should have a like power to remove his appointees charged
with other duties than those above described. The ordinary duties
of officers prescribed by statute come under the general
administrative control of the President by virtue of the general
grant to him of the executive power, and he may properly supervise
and guide their construction of the statutes under which they act
in order to secure that unitary and uniform execution of the laws
which Article II of the Constitution evidently contemplated in
vesting general executive power in the President alone. Laws are
often passed with specific provision for the adoption of
regulations by a department or bureau head to make the law workable
and effective. The ability and judgment manifested by the official
thus empowered, as well as his energy and stimulation of his
subordinates, are subjects which the President must consider and
supervise in his administrative control. Finding such officers to
be negligent and inefficient, the President should have the power
to remove them. Of course, there may be duties so peculiarly and
specifically committed to the discretion of a particular officer as
to raise a question whether the President may overrule or revise
the officer's interpretation of his statutory duty in a particular
instance. Then there may be duties of a quasi -judicial
character imposed on executive officers and members of executive
tribunals whose decisions after hearing affect interests of
individuals, the discharge of which the President cannot in a
particular case properly influence or control. But even in such a
case, he may consider the decision after its rendition as a reason
for removing the officer, on the ground that the discretion
regularly entrusted to that officer by statute has not been, on the
whole, intelligently or wisely exercised. Otherwise, he does not
discharge his own constitutional duty of seeing that the laws be
faithfully executed. Page 272 U. S. 136 We have devoted much space to this discussion and decision of
the question of the Presidential power of removal in the First
Congress, not because a Congressional conclusion on a
constitutional issue is conclusive, but, first, because of our
agreement with the reasons upon which it was avowedly based;
second, because this was the decision of the First Congress, on a
question of primary importance in the organization of the
Government, made within two years after the Constitutional
Convention and within a much shorter time after its ratification;
and, third, because that Congress numbered among its leaders those
who had been members of the Convention. It must necessarily
constitute a precedent upon which many future laws supplying the
machinery of the new Government would be based, and, if erroneous,
it would be likely to evoke dissent and departure in future
Congresses. It would come at once before the executive branch of
the Government for compliance, and might well be brought before the
judicial branch for a test of its validity. As we shall see, it was
soon accepted as a final decision of the question by all branches
of the Government.

															It was, of course, to be expected that the decision would be
received by lawyers and jurists with something of the same division
of opinion as that manifested in Congress, and doubts were often
expressed as to its correctness. But the acquiescence which was
promptly accorded it after a few years was universally
recognized.

															A typical case of such acquiescence was that of Alexander
Hamilton. In the discussion in the House of Representatives in
1789, Mr. White and others cited the opinion of Mr. Hamilton in
respect of the necessity for the consent of the Senate to removals
by the President, before they should be effective. (1 Annals, First
Congress, 456.) It was expressed in No. 77 of the Federalist as
follows: Page 272 U. S. 137 "It has been mentioned as one of the advantages to be expected
from the cooperation of the Senate in the business of appointments
that it would contribute to the stability of the Administration.
The consent of that body would be necessary to displace, as well as
to appoint. A change of the Chief Magistrate, therefore, would not
occasion so violent or so general a revolution in the officers of
the Government as might be expected if he were the sole disposer of
offices."

															Hamilton changed his view of this matter during his incumbency
as Secretary of the Treasury in Washington's Cabinet, as is shown
by his view of Washington's first proclamation of neutrality in the
war between France and Great Britain. That proclamation was at
first criticized as an abuse of executive authority. It has now
come to be regarded as one of the greatest and most valuable acts
of the first President's Administration, and has been often
followed by succeeding Presidents. Hamilton's argument was that the
Constitution, by vesting the executive power in the President, gave
him the right, as the organ of intercourse between the Nation and
foreign nations, to interpret national treaties and to declare
neutrality. He deduced this from Article II of the Constitution on
the executive power, and followed exactly the reasoning of Madison
and his associates as to the executive power upon which the
legislative decision of the First Congress as to Presidential
removals depends, and he cites it as authority. He said:

															"The second article of the Constitution of the United States,
section first, establishes this general proposition, that 'the
Executive Power shall be vested in a President of the United States
of America.'"

															"The same article, in a succeeding section, proceeds to
delineate particular cases of executive power. It declares, among
other things, that the President shall be commander in chief of the
army and navy of the United Page 272 U. S. 138 States, and of the militia of the several states, when called
into the actual service of the United States; that he shall have
power, by and with the advice and consent of the Senate, to make
treaties; that it shall be his duty to receive ambassadors and
other public ministers, and to take care that the laws be
faithfully executed. "

															"It would not consist with the rules of sound construction to
consider this enumeration of particular authorities as derogating
from the more comprehensive grant in the general clause, further
than as it may be coupled with express restrictions or limitations;
as in regard to the cooperation of the Senate in the appointment of
officers and the making of treaties; which are plainly
qualifications of the general executive powers of appointing
officers and making treaties. The difficulty of a complete
enumeration of all the cases of executive authority would naturally
dictate the use of general terms, and would render it improbable
that a specification of certain particulars was designed as a
substitute for those terms, when antecedently used. The different
mode of expression employed in the Constitution, in regard to the
two powers, the legislative and the executive, serves to confirm
this inference. In the article which gives the legislative powers
of the government, the expressions are 'All legislative powers
herein granted shall be vested in a congress of the United States.'
In that which grants the executive power, the expressions are 'The
executive power shall be vested in a President of the United
States.'"

															"The enumeration ought therefore to be considered as intended
merely to specify the principal articles implied in the definition
of executive power, leaving the rest to flow from the general grant
of that power, interpreted in conformity with other parts of the
Constitution, and with the principles of free government."

															"The general doctrine of our Constitution, then, is that the
executive power of the nation is vested in the President, Page 272 U. S. 139 subject only to the exceptions and qualifications, which are
expressed in the instrument."

															"Two of these have already been noticed; the participation of
the Senate in the appointment of officers and in the making of
treaties. A third remains to be mentioned: the right of the
legislature to 'declare war and grant letters of marque and
reprisal.'"

															"With these exceptions, the executive power of the United States
is completely lodged in the President. This mode of construing the
Constitution has indeed been recognized by Congress in formal acts
upon full consideration and debate, of which the power of removal
from office is an important instance. It will follow that, if a
proclamation of neutrality is merely an executive act, as it is
believed, has been shown, the step which has been taken by the
President is liable to no just exception on the score of
authority."

															7 J. C. Hamilton's "Works of Hamilton," 80-81.

															The words of a second great constitutional authority, quoted as
in conflict with the Congressional decision, are those of Chief
Justice Marshall. They were used by him in his opinion in Marbury v.
Madison , 1 Cranch 137 (1803). The judgment in that
case is one of the great landmarks in the history of the
construction of the Constitution of the United States, and is of
supreme authority, first, in respect of the power and duty of the
Supreme Court and other courts to consider and pass upon the
validity of acts of Congress enacted in violation of the
limitations of the Constitution, when properly brought before them
in cases in which the rights of the litigating parties require such
consideration and decision, and, second, in respect of the lack of
power of Congress to vest in the Supreme Court original
jurisdiction to grant the remedy of mandamus in cases in which by
the Constitution it is given only appellate jurisdiction. But it is
not to be regarded as such authority in respect of the Page 272 U. S. 140 power of the President to remove officials appointed by the
advice and consent of the Senate, for that question was not before
the Court.

															The case was heard upon a rule served upon James Madison,
Secretary of State, to show cause why a writ of mandamus should not
issue directing the defendant, Madison, to deliver to William
Marbury his commission as a justice of the peace for the County of
Washington in the District of Columbia. The rule was discharged by
the Supreme Court for the reason that the Court had no jurisdiction
in such a case to issue a writ for mandamus.

															The Court had, therefore, nothing before it calling for a
judgment upon the merits of the question of issuing the mandamus.
Notwithstanding this, the opinion considered preliminarily, first,
whether the relator had the right to the delivery of the
commission, and second, whether it was the duty of the Secretary of
State to deliver it to him, and a duty which could be enforced in a
court of competent jurisdiction at common law by a writ of
mandamus. The facts disclosed by affidavits filed were that
President Adams had nominated Marbury to be a justice of the peace
in the District of Columbia, under a law of Congress providing for
such appointment, by and with the advice and consent of the Senate,
for the term of five years, and that the Senate had consented to
such an appointment; that the President had signed the commission
as provided by the Constitution, and had transmitted it to the
Secretary of State, who, as provided by statute, had impressed the
seal of the United States thereon. The opinion of the Chief Justice
on these questions was that the commission was only evidence of the
appointment; that, upon delivery of the signed commission by the
President to the Secretary of.State, the office was filled, and the
occupant was thereafter entitled to the evidence of his appointment
in the form of the commission; that the duty of the Secretary in
delivering the commission to the officer entitled Page 272 U. S. 141 was.merely ministerial, and could be enforced by mandamus; that
the function of the Secretary in this regard was entirely to be
distinguished from his duty as a subordinate to the President in
the discharge of the President's political duties, which could not
be controlled.

															It would seem that this conclusion applied, under the reasoning
of the opinion, whether the officer was removable by the President
or not, if in fact the President had not removed him. But the
opinion assumed that, in the case of a removable office, the writ
would fail, on the presumption that there was in such a case
discretion of the appointing power to withhold the commission. And
so the Chief Justice proceeded to express an opinion on the
question whether the appointee was removable by the President. He
said:

															"As the law creating the office gave the officer a right to hold
it for five years, independent of the executive, the appointment
was not revocable, but vested in the officer legal rights which are
protected by the laws of his country."

															There was no answer by Madison to the rule issued in the case.
The case went by default. It did not appear, even by avowed
opposition to the issue of the writ, that the President had
intervened in the matter at all. It would seem to have been quite
consistent with the case as shown that this was merely an arbitrary
refusal by the Secretary to perform his ministerial function, and,
therefore, that the expression of opinion that the officer was not
removable by the President was unnecessary, even to the conclusion
that a writ in a proper case could issue. However this may be, the
whole statement was certainly obiter dictum with reference
to the judgment actually reached. The question whether the officer
was removable was not argued to the Court by any counsel contending
for that view. Counsel for the relator, who made the only argument,
contended that the officer was not removable by the President,
because he held a judicial office and, Page 272 U. S. 142 under the Constitution, could not be deprived of his office for
the five years of his term by Presidential action. The opinion
contains no wider discussion of the question than that quoted
above.

															While everything that the great Chief Justice said, whether obiter dictum or not, challenges the highest and most
respectful consideration, it is clear that the mere statement of
the conclusion made by him, without any examination of the
discussion which went on in the First Congress, and without
reference to the elaborate arguments there advanced to maintain the
decision of 1789, cannot be regarded as authority in considering
the weight to be attached to that decision -- a decision which, as
we shall see, he subsequently recognized as a well established rule
of constitutional construction.

															In such a case, we may well recur to the Chief Justice's own
language in Cohens v.
Virginia , 6 Wheat. 264, 19 U. S. 399 ,
in which, in declining to yield to the force of his previous
language in Marbury v. Madison, which was unnecessary to
the judgment in that case and was obiter dictum, he
said:

															"It is a maxim not to be disregarded that general expressions,
in every opinion, are to be taken in connection with the case in
which those expressions are used. If they go beyond the case, they
may be respected, but ought not to control the judgment in a
subsequent suit when the very point is presented for decision. The
reason of this maxim is obvious. The question actually before the
court is investigated with care and considered in its full extent.
Other principles which may serve to illustrate it are considered in
their relation to the case decided, but their possible bearing on
all other cases is seldom completely investigated."

															The weight of this dictum of the Chief Justice as to a
Presidential removal, in Marbury v. Madison, was
considered by this Court in Parsons v. United
States , 167 Page 272 U. S. 143 U.S. 324. It was a suit by Parsons against the United States for
the payment of the balance due for his salary and fees as United
States District Attorney for Alabama. He had been commissioned as
such, under the statute, for the term of four years from the date
of the commission, subject to the conditions prescribed by law.
There was no express power of removal provided. Before the end of
the four years, he was removed by the President. He was denied
recovery.

															The language of the Court in Marbury v. Madison, already referred to, was pressed upon this Court to show that
Parsons was entitled, against the Presidential action of removal,
to continue in office. If it was authoritative and stated the law
as to an executive office, it ended the case; but this Court did
not recognize it as such, for the reason that the Chief Justice's
language relied on was not germane to the point decided in Marbury v. Madison. If his language was more than a
dictum, and was a decision, then the Parsons case
overrules it.

															Another distinction, suggested by Mr. Justice Peckham in Parsons' case was that the remarks of the Chief Justice
were in reference to an office in the District of Columbia over
which, by Art. I, sec. 8, subd. 17, Congress had exclusive
jurisdiction in all cases, and might not apply to offices outside
of the District in respect to which the constant practice and the
Congressional decision had been the other way (p. 167 U. S.
335 ). How much weight should be given to this
distinction, which might accord to the special exclusive
jurisdiction conferred on Congress over the District power to
ignore the usual constitutional separation between the executive
and legislative branches of the Government, we need not
consider.

															If the Chief Justice, in Marbury v. Madison, intended
to express an opinion for the Court inconsistent with the
legislative decision of 1789, it is enough to observe that he
changed his mind; for otherwise it is inconceivable that Page 272 U. S. 144 he should have written and printed his full account of the
discussion and decision in the First Congress and his acquiescence
in it, to be found in his Life of Washington (Vol. V, pages
192-200).

															He concluded his account as follows:

															"After an ardent discussion which consumed several days, the
committee divided, and the amendment [ i.e., to strike out
from the original bill the words 'to be removable by the
President'] was negatived by a majority of thirty-four to twenty.
The opinion thus expressed by the house of representatives did not
explicitly convey their sense of the Constitution. Indeed, the
express grant of the power to the president, rather implied a right
in the legislature to give or withhold it at their discretion. To
obviate any misunderstanding of the principle on which the question
had been decided, Mr. Benson [later] moved in the house, when the
report of the committee of the whole was taken up, to amend the
second clause in the bill so as clearly to imply the power of
removal to be solely in the president. He gave notice that, if he
should succeed in this, he would move to strike out the words which
had been the subject of debate. If those words continued, he said,
the power of removal by the president might hereafter appear to be
exercised by virtue of a legislative grant only, and consequently
be subjected to legislative instability, when he was well satisfied
in his own mind that it was by fair construction, fixed in the
constitution. The motion was seconded by Mr. Madison, and both
amendments were adopted. As the bill passed into a law, it has ever
been considered as a full expression of the sense of the
legislature on this important part of the American
constitution."

															This language was first published in 1807, four years after the
judgment in Marbury v. Madison, and the edition was
revised by the Chief Justice in 1832. 3 Beveridge, Life of
Marshall, 248, 252, 272, 273. Page 272 U. S. 145 Congress, in a number of acts, followed and enforced the
legislative decision of 1789 for seventy-for years. In the act of
the First Congress which adapted to the Constitution the ordinance
of 1787 for the government of the Northwest Territory, which had
provided for the appointment and removal of executive territorial
officers by the Congress under the Articles of Confederation, it
was said

															"in all cases where the United States in Congress assembled
might, by the said ordinance, revoke any commission or remove from
any office, the President is hereby declared to have the same
powers of revocation and removal."

															1 Stat. 53, c. 8. This was approved eleven days after the act
establishing the Department of Foreign Affairs, and was evidently
in form a declaration in accord with the legislative constitutional
construction of the latter act. In the provision for the Treasury
and War Departments, the same formula was used as occurred in the
act creating the Department of Foreign Affairs; but it was omitted
from other creative acts only because the decision was thought to
be settled constitutional construction. In re
Hennen , 13 Peters 230, 38 U. S.
259 .

															Occasionally we find that Congress thought it wiser to make
express what would have been understood. Thus, in the Judiciary Act
of 1789, we find it provided in § 27, 1 Stat. 87, c. 20,

															"that a marshal shall be appointed in and for each district for
the term of four years, but shall be removable at pleasure, whose
duty it shall be to attend the District and Circuit Courts."

															That act became a law on September 24th, a month after the
Congressional debate on removals. It was formulated by a Senate
committee, of which Oliver Ellsworth was chairman, and which
presumably was engaged in drafting it during the time of that
debate. Section 35 of the same act provided for the appointment of
an attorney for the United States to prosecute crimes and conduct
civil actions on behalf of Page 272 U. S. 146 the United States, but nothing was said as to his term of office
or as to his removal. The difference in the two cases was evidently
to avoid any inference from the fixing of the term that a conflict
with the legislative decision of 1789 was intended.

															In the Act of May 15, 1820, 3 Stat. 582, c. 102, Congress
provided that thereafter, all district attorneys, collectors of
customs, naval officers, surveyors of the customs, navy agents,
receivers of public moneys for land, registers of the land office,
paymasters in the army, the apothecary general, the assistant
apothecaries general, and the commissary general of purchases, to
be appointed under the laws of the United States, should be
appointed for the term of four years, but should be removable from
office at pleasure.

															It is argued that these express provisions for removal at
pleasure indicate that, without them, no such power would exist in
the President. We cannot accede to this view. Indeed, the
conclusion that they were adopted to show conformity to the
legislative decision of 1789 is authoritatively settled by a
specific decision of this Court.

															In the Parsons case, 167 U. S. 324 ,
already referred to, the exact question which the Court had to
decide was whether, under § 769 of the Revised Statutes, providing
that district attorneys should be appointed for a term of four
years and their commissions should cease and expire at the
expiration of four years from their respective dates, the
appellant, having been removed by the President from his office as
district attorney before the end of his term, could recover his
salary for the remainder of the term. If the President had no power
of removal, then he could recover. The Court held that, under that
section, the President did have the power of removal, because of
the derivation of the section from the Act of 1820, above quoted.
In § 769, the specific provision of the Act of 1820 that the
officers should be removable Page 272 U. S. 147 from office at pleasure was omitted. This Court held that the
section should be construed as having been passed in the light of
the acquiescence of Congress in the decision of 1789, and therefore
included the power of removal by the President, even though the
clause for removal was omitted. This reasoning was essential to the
conclusion reached, and makes the construction by this Court of the
Act of 1820 authoritative. The Court used, in respect of the Act of
1820, this language ( 167 U. S. 167 U.S.
324, 167 U. S.
339 ):

															"The provision for a removal from office at pleasure was not
necessary for the exercise of that power by the President, because
of the fact that he was then regarded as being clothed with such
power in any event. Considering the construction of the
Constitution in this regard as given by the Congress. of 1789, and
having in mind the constant and uniform practice of the Government
in harmony with such construction, we must construe this act as
providing absolutely for the expiration of the term of office at
the end of four years, and not as giving a term that shall last, at
all events, for that time, and we think the provision that the
officials were removable from office at pleasure was but a
recognition of the construction thus almost universally adhered to
and acquiesced in as to the power of the President to remove."

															In the Act of July 17, 1862, 12 Stat. 596, c. 200, Congress
actually requested the President to make removals in the following
language:

															"the President of the United States be, and hereby is,
authorized and requested to dismiss and discharge from the military
service, either in the army, navy, marine corps, or volunteer
force, any officer for any cause which, in his judgment, either
renders such officer unsuitable for, or whose dismission would
promote, the public service."

															Attorney General Devens (15 Op.A.G. 421) said of this act that,
so far as it gave authority to the President, Page 272 U. S. 148 it was simply declaratory of the long-established law; that the
force of the act was to be found in the word "requested," by which
it was intended to reenforce strongly this power in the hands of
the President at a great crisis of the state -- a comment by the
Attorney General which was expressly approved by this Court in Blake v. United States, 103 U. S. 227 , 103 U. S.
234 .

															The acquiescence in the legislative decision of 1789 for nearly
three-quarters of a century by all branches of the Government has
been affirmed by this Court in unmistakable terms. In Parsons
v. United States, already cited, in which the matter of the
power of removal was reviewed at length in connection with that
legislative decision, this Court, speaking by Mr. Justice Peckham,
said (page 167 U. S.
330 ):

															"Many distinguished lawyers originally had very different
opinions in regard to this power from the one arrived at by this
Congress, but, when the question was alluded to in after years,
they recognized that the decision of Congress in 1789, and the
universal practice of the Government under it, had settled the
question beyond any power of alteration."

															We find this confirmed by Chancellor Kent's and Mr. Justice
Story's comments. Chancellor Kent, in writing to Mr. Webster in
January, 1830, concerning the decision of 1789, said:

															"I heard the question debated in the summer of 1789, and
Madison, Benson, Ames, Lawrence, etc. were in favor of the right of
removal by the President, and such has been the opinion ever since,
and the practice. I thought they were right because I then thought
this side uniformly right."

															Then, expressing subsequent pause and doubt upon this
construction as an original question because of Hamilton's original
opinion in The Federalist, already referred to, he continued:

															"On the other hand, it is too late to call the President's power
in question after a declaratory act of Congress and Page 272 U. S. 149 an acquiescence of half a century. We should hurt the reputation
of our government with the world, and we are accused already of the
Republican tendency of reducing all executive power into the
legislative, and making Congress a national convention. That the
President grossly abuses the power of removal is manifest, but it
is the evil genius of Democracy to be the sport of factions."

															1 Private Correspondence of Daniel Webster, Fletcher Webster
ed., 486; 1903 National ed., Little Brown Co.

															In his Commentaries, referring to this question, the Chancellor
said:

															"This question has never been made the subject of judicial
discussion, and the construction given to the Constitution in 1789
has continued to rest on this loose, incidental, declaratory
opinion of Congress, and the sense and practice of government since
that time. It may now be considered as firmly and definitely
settled, and there is good sense and practical utility in the
construction."

															1 Kent Commentaries, Lecture 14, p. 310, Subject, Marshals.

															Mr. Justice Story, after a very full discussion of the decision
of 1789 in which he intimates that, as an original question, he
would favor the view of the minority, says:

															"That the final decision of this question so made was greatly
influenced by the exalted character of the President then in office
was asserted at the time, and has always been believed. Yet the
doctrine was opposed, as well as supported, by the highest talents
and patriotism of the country. The public, however, acquiesced in
this decision, and it constitutes, perhaps, the most extraordinary
case in the history of the government of a power, conferred by
implication on the executive by the assent of a bare majority of
Congress, which has not been questioned on many other occasions.
Even the most jealous advocates of state rights seem to have
slumbered over this vast reach of authority, and have left it
untouched, as the neutral ground of controversy, in which they
desired Page 272 U. S. 150 to reap no harvest, and from which they retired, without leaving
any protestations of title or contest. Nor is this general
acquiescence and silence without a satisfactory explanation."

															2 Story, Constitution, § 1543.

															He finds that, until a then very recent period, namely the
Administration of President Jackson, the power of unrestricted
removal had been exercised by all the Presidents, but that
moderation and forbearance had been shown, that, under President
Jackson, however, an opposite course had been pursued extensively
and brought again the executive power of removal to a severe
scrutiny. The learned author then says:

															"If there has been any aberration from the true constitutional
exposition of the power of removal (which the reader must decide
for himself), it will be difficult, and perhaps impracticable,
after forty years' experience, to recall the practice to correct
theory. But, at all events, it will be a consolation to those who
love the Union, and honor a devotion to the patriotic discharge of
duty, that, in regard to 'inferior officers' (which appellation
probably includes ninety-nine out of a hundred of the lucrative
offices in the government), the remedy for any permanent abuse is
still within the power of Congress, by the simple expedient of
requiring the consent of the Senate to removals in such cases."

															2 Story Constitution, § 1544.

															In an article by Mr. Fish contained in the American Historical
Association Reports, 1899, p. 67, removals from office, not
including Presidential removals in the Army and the Navy, in the
administrations from Washington to Johnson, are stated to have been
as follows: Washington 17; Adams 19; Jefferson 62; Madison 24;
Jackson 180; Van Buren 43; Harrison and Tyler 389; Polk 228; Taylor
491; Fillmore 73; Pierce 771; Buchanan 253; Lincoln 1400; Johnson
726. These, we may infer, were all made in conformity to the
legislative decision of 1789.

															Mr. Webster is cited as opposed to the decision of the First
Congress. His views were evoked by the controversy Page 272 U. S. 151 between the Senate and President Jackson. The alleged general
use of patronage for political purposes by the President, and his
dismissal of Duane, Secretary of the Treasury, without reference to
the Senate, upon Duane's refusal to remove government deposits from
the United States Bank, awakened bitter criticism in the Senate,
and led to an extended discussion of the power of removal by the
President. In a speech, May 7, 1834, on the President's protest,
Mr. Webster asserted that the power of removal, without the consent
of the Senate, was in the President alone, according to the
established construction of the Constitution, and that Duane's
dismissal could not be justly said to be a usurpation. 4 Webster,
Works, 103-105. A year later, in February, 1835, Mr. Webster seems
to have changed his views somewhat, and, in support of a bill
requiring the President in making his removals from office to send
to the Senate his reasons therefor, made an extended argument
against the correctness of the decision of 1789. He closed his
speech thus:

															"But I think the decision of 1789 has been established by
practice, and recognized by subsequent laws, as the settled
construction of the Constitution, and that it is our duty to act
upon the case accordingly for the present, without admitting that
Congress may not, hereafter, if necessity shall require it, reverse
the decision of 1789."

															4 Webster, 179, 198. Mr. Webster denied that the vesting of the
executive power in the President was a grant of power. It amounted,
he said, to no more than merely naming the department. Such a
construction, although having the support of as great an expounder
of the Constitution as Mr. Webster, is not in accord with the usual
canon of interpretation of that instrument, which requires that
real effect should be given to all the words it uses. Prout v.
Starr, 188 U. S. 537 , 188 U. S. 544 ; Hurtado v. California, 110 U. S. 516 , 110 U. S. 534 ; Prigg v.
Pennsylvania , 16 Pet. 539, 41 U. S. 612 ; Holmes v.
Jennison , Page 272 U. S. 152 14 Pet. 540, 39 U. S.
570 -571; Cohens v.
Virginia , 6 Wheat. 264, 19 U. S. 398 ; Marbury v. Madison, supra, at p. 5
U. S. 174 . Nor can we concur in Mr. Webster's apparent
view that, when Congress, after full consideration and with the
acquiescence and long practice of all the branches of the
Government, has established the construction of the Constitution,
it may, by its mere subsequent legislation, reverse such
construction. It is not given power by itself thus to amend the
Constitution. It is not unjust to note that Mr. Webster's final
conclusion on this head was reached after pronounced political
controversy with General Jackson, which he concedes may have
affected his judgment and attitude on the subject.

															Mr. Clay and Mr. Calhoun, acting upon a like impulse, also
vigorously attacked the decision; but no legislation of any kind
was adopted in that period to reverse the established
constitutional construction, while its correctness was vigorously
asserted and acted on by the Executive. On February 10, 1835,
President Jackson declined to comply with the Senate resolution,
regarding the charges which caused the removal of officials from
office, saying:

															"The President, in cases of this nature, possesses the exclusive
power of removal from office, and, under the sanctions of his
official oath and of his liability to impeachment, he is bound to
exercise it whenever the public welfare shall require. If, on the
other hand, from corrupt motives he abuses this power, he is
exposed to the same responsibilities. On no principle known to our
institutions can he be required to account for the manner in which
he discharges this portion of his public duties. save only in the
mode and under the forms prescribed by the Constitution."

															3 Messages of the Presidents, 1352.

															In Ex parte
Hennen , 13 Peters 230, decided by this Court in
1839, the prevailing effect of the legislative decision of 1789 was
fully recognized. The question there Page 272 U. S. 153 was of the legality of the removal from office by a United
States District Court of its clerk, appointed by it under § 7 of
the Judiciary Act, 1 Stat. 76, c. 20. The case was ably argued and
the effect of the legislative decision of the First Congress was
much discussed. The Court said (pp. 258-259):

															"The Constitution is silent with respect to the power of removal
from office, where the tenure is not fixed. It provides that the
judges, both of the supreme and inferior courts, shall hold their
offices during good behavior. But no tenure is fixed for the office
of clerks. . . . It cannot, for a moment, be admitted that it was
the intention of the Constitution that those offices which are
denominated inferior offices should be held during life. And if
removable at pleasure, by whom is such removal to be made? In the
absence of all constitutional provision or statutory regulation, it
would seem to be a sound and necessary rule to consider the power
of removal as incident to the power of appointment. This power of
removal from office was a subject much disputed, and upon which a
great diversity of opinion was entertained in the early history of
this government. This related, however, to the power of the
President to remove officers appointed with the concurrence of the
Senate, and the great question was whether the removal was to be by
the President alone, or with the concurrence of the Senate, both
constituting the appointing power. No one denied the power of the
President and Senate jointly to remove where the tenure of the
office was not fixed by the Constitution, which was a full
recognition of the principle that the power of removal was incident
to the power of appointment. But it was very early adopted as the
practical construction of the Constitution that this power was
vested in the President alone. And such would appear to have been
the legislative construction of the Constitution. For, in the
organization of the three great Page 272 U. S. 154 departments of State, War and Treasury, in the year 1789,
provision is made for the appointment of a subordinate officer by
the head of the department, who should have the charge and custody
of the records, books, and papers appertaining to the office when
the head of the department should be removed from the office by the
President of the United States. (1 Story, 5, 31, 47.) When the Navy
Department was established in the year 1798 (1 Story, 498),
provision is made for the charge and custody of the books, records,
and documents of the department in case of vacancy in the office of
secretary, by removal or otherwise. It is not here said, by removal
by the President, as is done with respect to the heads of the other
departments, and yet there can be no doubt that he holds his office
by the same tenure as the other secretaries, and is removable by
the President. The change of phraseology arose, probably, from its
having become the settled and well understood construction of the
Constitution that the power of removal was vested in the President
alone in such cases, although the appointment of the officer was by
the President and Senate."

															The legislative decision of 1789 and this Court's recognition of
it were followed, in 1842, by Attorney General Legare, in the
Administration of President Tyler (4 Op.A.G. 1); in 1847, by
Attorney General Clifford, in the

															Administration of President Polk (4 Op.A.G. 603); by Attorney
General Crittenden, in the Administration of President Fillmore (5
Op.A.G. 288, 290); by Attorney General Cushing, in the
Administration of President Buchanan (6 Op.A.G. 4); all of whom
delivered opinions of a similar tenor.

															It has been sought to make an argument, refuting our conclusion
as to the President's power of removal of executive officers, by
reference to the statutes passed and practice prevailing from 1789
until recent years in respect of the removal of judges whose tenure
is not fixed by Page 272 U. S. 155 Article III of the Constitution, and who are not strictly United
States Judges under that article. The argument is that, as there is
no express constitutional restriction as to the removal of such
judges, they come within the same class as executive officers, and
that statutes and practice in respect of them may properly be used
to refute the authority of the legislative decision of 1789 and
acquiescence therein.

															The fact seems to be that judicial removals were not considered
in the discussion in the First Congress, and that the First
Congress, August 7, 1789, 1 Stat. 50-53, c. 8, and succeeding
Congresses until 1804, assimilated the judges appointed for the
territories to those appointed under Article III, and provided life
tenure for them, while other officers of those territories were
appointed for a term of years unless sooner removed. See, as to such legislation, dissenting opinion of Mr. Justice McLean in United States v.
Guthrie , 17 How. 284, 58 U. S. 308 .
In American Insurance Company v.
Canter , 1 Peters 511 (1828), it was held that the
territorial courts were not constitutional courts in which the
judicial power conferred by the Constitution on the general
government could be deposited. After some ten or fifteen years, the
judges in some territories were appointed for a term of years, and
the Governor and other officers were appointed for a term of years
unless sooner removed. Inc Missouri and Arkansas only were the
judges appointed for four years if not sooner removed.

															After 1804, removals were made by the President of territorial
judges appointed for terms of years before the ends of their terms.
They were sometimes suspended and sometimes removed. Between 1804
and 1867, there were ten removals of such judges in Minnesota,
Utah, Washington, Oregon and Nebraska. The executive department
seemed then to consider that territorial judges were subject to
removal just as if they had been executive Page 272 U. S. 156 officers, under the legislative decision of 1789. Such was the
opinion of Attorney General Crittenden on the question of the
removal of the Chief Justice of Minnesota Territory (5 Op.A.G. 288)
in 1851. Since 1867, territorial judges have been removed by the
President, seven in Arizona, one in Hawaii, one in Indian
Territory, two in Idaho, three in New Mexico, two in Utah, one in
Wyoming,

															The question of the President's power to remove such a judge, as
viewed by Mr. Crittenden, came before this Court in United States v.
Guthrie , 17 How. 284. The relator, Goodrich, who
had been removed by the President from his office as a territorial
judge, sought by mandamus to compel the Secretary of the Treasury
to draw his warrant for the relator's salary for the remainder of
his term after removal, and contested the Attorney General's
opinion that the President's removal in such a case was valid. This
Court did not decide this issue, but held that it had no power to
issue a writ of mandamus in such a case. Mr. Justice McLean
delivered a dissenting opinion (at page 58 U. S. 308 ).
He differed from the Court in its holding that mandamus would not
issue. He expressed a doubt as to the correctness of the
legislative decision of the First Congress as to the power of
removal by the President alone of executive officers appointed by
him with the consent of the Senate, but admitted that the decision
as to them had been so acquiesced in, and the practice had so
conformed to it, that it could not be set aside. But he insisted
that the statutes and practice which had governed the appointment
and removal of territorial judges did not come within the scope and
effect of the legislative decision of 1789. He pointed out that the
argument upon which the decision rested was based on the necessity
for Presidential removals in the discharge by the President of his
executive duties and his taking care that the laws be faithfully
executed, and that such an argument could not Page 272 U. S. 157 apply to the judges over whose judicial duties he could not
properly exercise any supervision or control after their
appointment and confirmation.

															In the case of McAllister v. United States, 141 U. S. 174 , a
judge of the District Court of Alaska, it was held, could be
deprived of a right to salary as such by his suspension under
Revised Statutes 1768. That section gave the President, in his
discretion, authority to suspend any civil officer appointed by and
with the advice and consent of the Senate, except judges of the
courts of the United States, until the end of the next session of
the Senate, and to designate some suitable person, subject to be
removed in his discretion by the designation of another, to perform
the duties of such suspended officer. It was held that the words
"except judges of the courts of the United States" applied to
judges appointed under Article III, and did not apply to
territorial judges, and that the President, under § 1768, had power
to suspend a territorial judge during a recess of the Senate, and
no recovery could be had for salary during that suspended period.
Mr. Justice Field, with Justices Gray and Brown, dissented on the
ground that, in England, by the act of 13th William III, it had
become established law that judges should hold their offices
independent of executive removal, and that our Constitution
expressly makes such limitation as to the only judges specifically
mentioned in it, and should be construed to carry such limitation
as to other judges appointed under its provisions.

															Referring in Parsons v. United States, 167 U.
S. 324 , at p. 337, to the McAllister case, this
Court said:

															"The case contains nothing in opposition to the contention as to
the practical construction that had been given to the Constitution
by Congress in 1789, and by the government generally since that
time and up to the Act of 1867."

															The questions, first, whether a judge appointed by the President
with the consent of the Senate under an act of Page 272 U. S. 158 Congress, not under authority of Article III of the
Constitution, can be removed by the President alone without the
consent of the Senate, second, whether the legislative decision of
1789 covers such a case, and third, whether Congress may provide
for his removal in some other way present considerations different
from those which apply in the removal of executive officers, and
therefore we do not decide them.

															We come now to consider an argument advanced and strongly
pressed on behalf of the complainant, that this case concerns only
the removal of a postmaster; that a postmaster is an inferior
officer; that such an office was not included within the
legislative decision of 1789, which related only to superior
officers to be appointed by the President by and with the advice
and consent of the Senate. This, it is said, is the distinction
which Chief Justice Marshall had in mind in Marbury v.
Madison in the language already discussed in respect of the
President's power to remove a District of Columbia justice of the
peace appointed and confirmed for a term of years. We find nothing
in Marbury v. Madison to indicate any such distinction. It
cannot be certainly affirmed whether the conclusion there stated
was based on a dissent from the legislative decision of 1789, or on
the fact that the office was created under the special power of
Congress exclusively to legislate for the District of Columbia, or
on the fact that the office was a judicial one, or on the
circumstance that it was an inferior office. In view of the doubt
as to what was really the basis of the remarks relied on, and their obiter dictum character, they can certainly not be used to
give weight to the argument that the 1789 decision only related to
superior officers.

															The very heated discussions during General Jackson's
Administration, except as to the removal of Secretary Duane,
related to the distribution of offices which were, most of them,
inferior offices, and it was the operation of Page 272 U. S. 159 the legislative decision of 1789 upon the power of removal of
incumbents of such offices that led the General to refuse to comply
with the request of the Senate that he give his reasons for the
removals therefrom. It was to such inferior officers that
Chancellor Kent's letter to Mr. Webster, already quoted, was
chiefly directed, and the language cited from his Commentaries on
the decision of 1789 was used with reference to the removal of
United States marshal. It was such inferior offices that Mr.
Justice Story conceded to be covered by the legislative decision in
his Treatise on the Constitution, already cited, when he suggested
a method by which the abuse of patronage in such offices might be
avoided. It was with reference to removals from such inferior
offices that the already cited opinions of the Attorneys General,
in which the legislative decision of 1789 was referred to as
controlling authority, were delivered. That of Attorney General
Legare (4 Op.A.G. 1) affected the removal of a surgeon in the Navy.
The opinion of Attorney General Clifford (4 Op.A.G. 603, 612)
involved an officer of the same rank. The opinion of Attorney
General Cushing (6 Op.A.G. 4) covered the office of military
storekeeper. Finally, Parsons' case, where it was the
point in judgment, conclusively establishes for this Court that the
legislative decision of 1789 applied to a United States attorney,
an inferior officer.

															It is further pressed on us that, even though the legislative
decision of 1789 included inferior officers, yet, under the
legislative power given Congress with respect to such officers, it
might directly legislate as to the method of their removal without
changing their method of appointment by the President with the
consent of the Senate. We do not think the language of the
Constitution justifies such a contention.

															Section 2 of Article II, after providing that the President
shall nominate and with the consent of the Senate Page 272 U. S. 160 appoint ambassadors, other public ministers, consuls, judges of
the Supreme Court and all other officers of the United States whose
appointments are not herein otherwise provided for, and which shall
be established by law, contains the proviso:

															"but the Congress may by law vest the appointment of such
inferior officers as they think proper in the President alone, in
the courts of law or in the heads of departments."

															In United States v. Perkins, 116 U.
S. 483 , a cadet engineer, a graduate of the Naval
Academy, brought suit to recover his salary for the period after
his removal by the Secretary of the Navy. It was decided that his
right was established by Revised Statutes 1229, providing that no
officer in the military or naval service should in time of peace be
dismissed from service except in pursuance of a sentence of
court-martial. The section was claimed to be an infringement upon
the constitutional prerogative of the Executive. The Court of
Claims refused to yield to this argument, and said:

															"Whether or not Congress can restrict the power of removal
incident to the power of appointment to those officers who are
appointed by the President by and with the advice and consent of
the Senate under the authority of the Constitution, Article 2,
Section 2, does not arise in this case, and need not be considered.
We have no doubt that, when Congress by law vests the appointment
of inferior officers in the heads of departments, it may limit and
restrict the power of removal as it deems best for the public
interest. The constitutional authority in Congress to thus vest the
appointment implies authority to limit, restrict, and regulate the
removal by such laws as Congress may enact in relation to the
officers appointed. The head of a department has no constitutional
prerogative of appointment to offices independently of the
legislation of Congress, and by such legislation he must be
governed not only in making appointments, but in all that is
incident thereto. " Page 272 U. S. 161 This language of the Court of Claims was approved by this Court
and the judgment was affirmed.

															The power to remove inferior executive officers, like that to
remove superior executive officers, is an incident of the power to
appoint them, and is in its nature an executive power. The
authority of Congress given by the excepting clause to vest the
appointment of such inferior officers in the heads of departments
carries with it authority incidentally to invest the heads of
departments with power to remove. It has been the practice of
Congress to do so and this Court has recognized that power. The
Court also has recognized in the Perkins case that
Congress, in committing the appointment of such inferior officers
to the heads of departments, may prescribe incidental regulations
controlling and restricting the latter in the exercise of the power
of removal. But the Court never has held, nor reasonably could
hold, although it is argued to the contrary on behalf of the
appellant, that the excepting clause enables Congress to draw to
itself, or to either branch of it, the power to remove or the right
to participate in the exercise of that power. To do this would be
to go beyond the words and implications of that clause and to
infringe the constitutional principle of the separation of
governmental powers.

															Assuming then the power of Congress to regulate removals as
incidental to the exercise of its constitutional power to vest
appointments of inferior officers in the heads of departments,
certainly so long as Congress does not exercise that power, the
power of removal must remain where the Constitution places it, with
the President, as part of the executive power, in accordance with
the legislative decision of 1789 which we have been
considering.

															Whether the action of Congress in removing the necessity for the
advice and consent of the Senate, and putting the power of
appointment in the President alone, would Page 272 U. S. 162 make his power of removal in such case any more subject to
Congressional legislation than before is a question this Court did
not decide in the Perkins case. Under the reasoning upon
which the legislative decision of 1789 was put, it might be
difficult to avoid a negative answer, but it is not before us and
we do not decide it.

															The Perkins case is limited to the vesting by Congress
of the appointment of an inferior officer in the head of a
department. The condition upon which the power of Congress to
provide for the removal of inferior officers rests is that it shall
vest the appointment in some one other than the President with the
consent of the Senate. Congress may not obtain the power and
provide for the removal of such officer except on that condition.
If it does not choose to entrust the appointment of such inferior
officers to less authority than the President with the consent of
the Senate, it has no power of providing for their removal. That is
the reason why the suggestion of Mr. Justice Story, relied upon in
this discussion, cannot be supported if it is to have the
construction which is contended for. He says that, in regard to
inferior officers under the legislative decision of 1789,

															"the remedy for any permanent abuse ( i.e., of executive
patronage) is still within the power of Congress by the simple
expedient of requiring the consent of the Senate to removals in
such cases."

															It is true that the remedy for the evil of political executive
removals of inferior offices is with Congress by a simple
expedient, but it includes a change of the power of appointment
from the President with the consent of the Senate. Congress must
determine first that the office is inferior, and second that it is
willing that the office shall be filled by appointment by some
other authority than the President with the consent of the Senate.
That the latter may be an important consideration is manifest, and
is the subject of comment by this Court in it opinion in the case
of Shurtleff v. United States, 189 U.
S. 311 , 189 U. S. 315 ,
where this Court said: Page 272 U. S. 163 "To take away this power of removal in relation to an inferior
office created by statute, although that statute provided for an
appointment thereto by the President and confirmation by the
Senate, would require very clear and explicit language. It should
not be held to be taken away by mere inference or implication.
Congress has regarded the office as of sufficient importance to
make it proper to fill it by appointment to be made by the
President and confirmed by the Senate. It has thereby classed it as
appropriately coming under the direct supervision of the President,
and to be administered by officers appointed by him (and confirmed
by the Senate) with reference to his constitutional responsibility
to see that the laws are faithfully executed. Art. 2, sec. 3."

															It is said that, for forty years or more, postmasters were all
by law appointed by the Postmaster General. This was because
Congress, under the excepting clause, so provided. But thereafter,
Congress required certain classes of them to be, as they now are,
appointed by the President with the consent of the Senate. This is
an indication that Congress deemed appointment by the President
with the consent of the Senate essential to the public welfare,
and, until it is willing to vest their appointment in the head of
the Department, they will be subject to removal by the President
alone, and any legislation to the contrary must fall a in conflict
with the Constitution.

															Summing up, then, the facts as to acquiescence by all branches
of the Government in the legislative decision of 1789, as to
executive officers, whether superior or inferior, we find that from
1789 until 1863, a period of 74 years, there was no act of
Congress, no executive act, and no decision of this Court at
variance with the declaration of the First Congress, but there was,
as we have seen, clear, affirmative recognition of it by each
branch of the Government.

															Our conclusion on the merits, sustained by the arguments before
stated, is that Article II grants to the President Page 272 U. S. 164 the executive power of the Government, i.e., the
general administrative control of those executing the laws,
including the power of appointment and removal of executive
officers -- a conclusion confirmed by his obligation to take care
that the laws be faithfully executed; that Article II excludes the
exercise of legislative power by Congress to provide for
appointments and removals, except only as granted therein to
Congress in the matter of inferior offices; that Congress is only
given power to provide for appointments and removals of inferior
officers after it has vested, and on condition that it does vest,
their appointment in other authority than the President with the
Senate's consent; that the provisions of the second section of
Article II, which blend action by the legislative branch, or by
part of it, in the work of the executive are limitations to be
strictly construed, and not to be extended by implication; that the
President's power of removal is further established as an incident
to his specifically enumerated function of appointment by and with
the advice of the Senate, but that such incident does not, by
implication, extend to removals the Senate's power of checking
appointments, and finally that to hold otherwise would make it
impossible for the President, in case of political or other
differences with the Senate or Congress, to take care that the laws
be faithfully executed.

															We come now to a period in the history of the Government when
both Houses of Congress attempted to reverse this constitutional
construction and to subject the power of removing executive
officers appointed by the President and confirmed by the Senate to
the control of the Senate -- indeed, finally, to the assumed power
in Congress to place the removal of such officers anywhere in the
Government.

															This reversal grew out of the serious political difference
between the two Houses of Congress and President Johnson. Page 272 U. S. 165 There was a two-thirds majority of the Republican party in
control of each House of Congress, which resented what it feared
would be Mr. Johnson's obstructive course in the enforcement of the
reconstruction measures in respect of the States whose people had
lately been at war against the National Government. This led the
two Houses to enact legislation to curtail the then acknowledged
powers of the President. It is true that, during the latter part of
Mr. Lincoln's term, two important voluminous acts were passed, each
containing a section which seemed inconsistent with the legislative
decision of 1789 (Act of February 25, 1863, 12 Stat. 665, c. 58, §
1, Act of March 3, 1865, 13 Stat. 489, c. 79, § 12); but they were
adopted without discussion of the inconsistency, and were not
tested by executive or judicial inquiry. The real challenge to the
decision of 1789 was begun by the Act of July 13, 1866, 14 Stat.
92, c. 176, forbidding dismissals of Army and Navy officers in time
of peace without a sentence by court-martial, which this Court, in Blake v. United States, 103 U. S. 227 , at
p. 103 U. S. 235 ,
attributed to the growing differences between President Johnson and
Congress.

															Another measure having the same origin and purpose was a rider
on an army appropriation act of March 2, 1867, 14 Stat. 487, c.
170, § 2, which fixed the headquarters of the General of the Army
of the United States at Washington, directed that all orders
relating to military operations by the President or Secretary of
War should be issued through the General of the Army, who should
not be removed, suspended, or relieved from command, or assigned to
duty elsewhere, except at his own request, without the previous
approval of the Senate, and that any orders or instructions
relating to military operations issued contrary to this should be
void, and that any officer of the Army who should issue, knowingly
transmit, or obey any orders issued contrary to the provisions
of Page 272 U. S. 166 this section should be liable to imprisonment for years. By the
Act of March 27, 1868, 15 Stat. 44, c. 34, § 2, the next Congress
repealed a statutory provision as to appeals in habeas corpus cases
with the design, as was avowed by Mr. Schenck, chairman of the
House Committee on Ways and Means, of preventing this Court from
passing on the validity of reconstruction legislation. 81
Congressional Globe, pages 1881, 1883; Ex parte
McArdle , 7 Wall. 506.

															But the chief legislation in support of the reconstruction
policy of Congress was the Tenure of Office Act, of March 2, 1867,
14 Stat. 430, c. 154, providing that all officers appointed by and
with the consent of the Senate should hold their offices until
their successors should have in like manner been appointed and
qualified, and that certain heads of departments, including the
Secretary of War, should hold their offices during the term of the
President by whom appointed and one month thereafter, subject to
removal by consent of the Senate. The Tenure of Office Act was
vetoed, but it was passed over the veto. The House of
Representatives preferred articles of impeachment against President
Johnson for refusal to comply with, and for conspiracy to defeat,
the legislation above referred to, but he was acquitted for lack of
a two-thirds vote for conviction in the Senate.

															In Parsons v. United States, supra, the Court thus
refers to the passage of the Tenure of Office Act (p. 167 U. S.
340 ):

															"The President, as is well known, vetoed the tenure of office
act because he said it was unconstitutional in that it assumed to
take away the power of removal constitutionally vested in the
President of the United States -- a power which had been uniformly
exercised by the Executive Department of the Government from its
foundation. Upon the return of the bill to Congress, it was passed
over the President's veto by both houses, and became a law. The
continued and uninterrupted practice of the Page 272 U. S. 167 Government from 1789 was thus broken in upon and changed by the
passage of this act, so that, if constitutional, thereafter all
executive officers whose appointments had been made with the advice
and consent of the Senate could not be removed by the President
without the concurrence of the Senate in such order of
removal."

															"Mr. Blaine, who was in Congress at the time, in afterwards
speaking of this bill, said:"

															"It was an extreme proposition -- a new departure from the
long-established usage of the Federal Government -- and for that
reason, if for no other, personally degrading to the incumbent of
the Presidential chair. It could only have grown out of abnormal
excitement created by dissensions between the two great departments
of the Government. . . . The measure was resorted to as one of
self-defense against the alleged aggressions and unrestrained power
of the executive department."

															"Twenty Years of Congress, vol. 2, 273, 274."

															The extreme provisions of all this legislation were a full
justification for the considerations so strongly advanced by Mr.
Madison and his associates in the First Congress for insisting that
the power of removal of executive officers by the President alone
was essential in the division of powers between the executive and
the legislative bodies. It exhibited in a clear degree the
paralysis to which a partisan Senate and Congress could subject the
executive arm and destroy the principle of executive responsibility
and separation of the powers, sought for by the framers of our
Government, if the President had no power of removal save by
consent of the Senate. It was an attempt to redistribute the
powers, and minimize those of the President.

															After President Johnson's term ended, the injury and invalidity
of the Tenure of Office Act in its radical innovation were
immediately recognized by the Executive, and objected to. General
Grant, succeeding Mr. Johnson Page 272 U. S. 168 in the Presidency, earnestly recommended in his first message
the total repeal of the act, saying:

															"It may be well to mention here the embarrassment possible to
arise from leaving on the statute books the so-called 'tenure of
office acts,' and to earnestly recommend their total repeal. It
could not have been the intention of the framers of the
Constitution, when providing that appointments made by the
President should receive the consent of the Senate, that the latter
should have the power to retain in office persons placed there by
Federal appointment against the will of the President. The law is
inconsistent with a faithful and efficient administration of the
Government. What faith can an Executive put in officials forced
upon him, and those, too, whom he has suspended for reason? How
will such officials be likely to serve an Administration which they
know does not trust them?"

															9 Messages and papers of the Presidents, 3992.

															While, in response to this, a bill for repeal of that act passed
the House, it failed in the Senate, and, though the law was
changed, it still limited the Presidential power of removal. The
feeling growing out of the controversy with President Johnson
retained the act on the statute book until 1887, when it was
repealed. 24 Stat. 500, c. 353. During this interval, on June 8,
1872, Congress passed an act reorganizing and consolidating the
Post Office Department, and provided that the Postmaster General
and his three assistants should be appointed by the President by
and with the advice and consent of the Senate, and might be removed
in the same manner. 17 Stat. 284, c. 335, § 2. In 1876 the act here
under discussion was passed, making the consent of the Senate
necessary both to the appointment and removal of first, second, and
third class postmasters. 19 Stat. 80, c. 179, § 6.

															In the same interval, in March, 1886, President Cleveland, in
discussing the requests which the Senate had Page 272 U. S. 169 made for his reasons for removing officials, and the assumption
that the Senate had the right to pass upon those removals, and thus
to limit the power of the President, said:

															"I believe the power to remove or suspend such officials is
vested in the President alone by the Constitution, which, in
express terms, provides that 'the executive power shall be vested
in a President of the United States of America,' and that 'he shall
take care that the laws be faithfully executed.'"

															"The Senate belongs to the legislative branch of the Government.
When the Constitution, by express provision, superadded to its
legislative duties the right to advise and consent to appointments
to office and to sit as a court of impeachment, it conferred upon
that body all the control and regulation of Executive action
supposed to be necessary for the safety of the people, and this
express and special grant of such extraordinary powers, not in any
way related to or growing out of general Senatorial duties and, in
itself, a departure from the general plan of our Government, should
be held, under a familiar maxim of construction, to exclude every
other right of interference with Executive functions."

															11 Messages and Papers of the Presidents, 4964.

															The attitude of the Presidents on this subject has been
unchanged and uniform to the present day whenever an issue has
clearly been raised. In a message withholding his approval of an
act which he thought infringed upon the executive power of removal,
President Wilson said:

															"It has, I think, always been the accepted construction of the
Constitution that the power to appoint officers of this kind
carries with it, as an incident, the power to remove. I am
convinced that the Congress is without constitutional power to
limit the appointing power and its incident, the power of removal,
derived from the Constitution."

															59 Congressional Record (June 4, 1920), 8609. Page 272 U. S. 170 And President Coolidge, in a message to Congress in response to
a resolution of the Senate that it was the sense of that body that
the President should immediately request the resignation of the
then Secretary of the Navy, replied:

															"No official recognition can be given to the passage of the
Senate resolution relative to their opinion concerning members of
the Cabinet or other officers under executive control."

															". . . The dismissal of an officer of the Government, such as is
involved in this case, other than by impeachment, is exclusively an
executive function. I regard this as a vital principle of our
Government."

															65 Congressional Record (Feb. 13, 1924), 2335.

															In spite of the foregoing Presidential declarations, it is
contended that, since the passage of the Tenure of Office Act,
there has been general acquiescence by the Executive in the power
of Congress to forbid the President alone to remove executive
officers -- an acquiescence which has changed any formerly accepted
constitutional construction to the contrary. Instances are cited of
the signed approval by President Grant and other Presidents of
legislation in derogation of such construction. We think these are
all to be explained not by acquiescence therein, but by reason of
the otherwise valuable effect of the legislation approved. Such is
doubtless the explanation of the executive approval of the Act of
1876, which we are considering, for it was an appropriation act on
which the section here in question was imposed as a rider.

															In the use of Congressional legislation to support or change a
particular construction of the Constitution by acquiescence, its
weight for the purpose must depend not only upon the nature of the
question, but also upon the attitude of the executive and judicial
branches of the Government, as well as upon the number of instances
in the execution of the law in which opportunity for objection Page 272 U. S. 171 in the courts or elsewhere is afforded. When instances which
actually involve the question are rare, or have not, in fact,
occurred, the weight of the mere presence of acts on the statute
book for a considerable time, as showing general acquiescence in
the legislative assertion of a questioned power, is minimized. No
instance is cited to us where any question has arisen respecting a
removal of a Postmaster General or one of his assistants. The
President's request for resignations of such officers is generally
complied with. The same thing is true of the postmasters. There
have been many executive removals of them, and but few protests or
objections. Even when there has been a refusal by a postmaster to
resign, removal by the President has been followed by a nomination
of a successor, and the Senate's confirmation has made unimportant
the inquiry as to the necessity for the Senate's consent to the
removal.

															Other acts of Congress are referred to which contain provisions
said to be inconsistent with the 1789 decision. Since the provision
for an Interstate Commerce Commission, in 1887, many administrative
boards have been created whose members are appointed by the
President, by and with the advice and consent of the Senate, and in
the statutes creating them have been provisions for the removal of
the members for specified causes. Such provisions are claimed to be
inconsistent with the independent power of removal by the
President. This, however, is shown to be unfounded by the case of Shurtleff v. United States, 189 U.
S. 311 (1903). That concerned an act creating a board of
general appraisers, 26 Stat. 131, 136, c. 407, § 12, and providing
for their removal for inefficiency, neglect of duty or malfeasance
in office. The President removed an appraiser without notice or
hearing. It was forcibly contended that the affirmative language of
the statute implied the negative of the power to remove except for
cause and after a hearing. This would Page 272 U. S. 172 have been the usual rule of construction, but the Court declined
to apply it. Assuming for the purpose of that case only, but
without deciding, that Congress might limit the President's power
to remove, the Court held that, in the absence of constitutional or
statutory provision otherwise, the President could, by virtue of
his general power of appointment, remove an officer though
appointed by and with the advice and consent of the Senate and
notwithstanding specific provisions for his removal for cause, on
the ground that the power of removal inhered in the power to
appoint. This is an indication that many of the statutes cited are
to be reconciled to the unrestricted power of the President to
remove if he chooses to exercise his power.

															There are other later acts pointed out in which, doubtless, the
inconsistency with the independent power of the President to remove
is clearer, but these cannot be said really to have received the
acquiescence of the executive branch of the Government. Whenever
there has been a real issue in respect of the question of
Presidential removals, the attitude of the Executive in
Congressional message has been clear and positive against the
validity of such legislation. The language of Mr. Cleveland in
1886, twenty years after the Tenure of Office Act, in his
controversy with the Senate in respect of his independence of that
body in the matter of removing inferior officers appointed by him
and confirmed by the Senate, was quite as pronounced as that of
General Jackson in a similar controversy in 1835. Mr. Wilson, in
1920, and Mr. Coolidge, in 1924, were quite as all-embracing in
their views of the power of removal as General Grant in 1869, and
as Mr. Madison and Mr. John Adams in 1789.

															The fact seems to be that all departments of the Government have
constantly had in mind, since the passage of the Tenure of Office
Act, that the question of power of removal by the President of
officers appointed by him Page 272 U. S. 173 with the Senate's consent, has not been settled adversely to the
legislative action of 1789, but, in spite of Congressional action,
has remained open until the conflict should be subjected to
judicial investigation and decision.

															The action of this Court cannot be said to constitute assent to
a departure from the legislative decision of 1789, when the Parsons and Shurtleff cases, one decided in 1897
and the other in 1903, are considered; for they certainly leave the
question open. Wallace v. United States, 257 U.
S. 541 . Those cases indicate no tendency to depart from
the view of the First Congress. This Court has, since the Tenure of
Office Act, manifested an earnest desire to avoid a final
settlement of the question until it should be inevitably presented,
as it is here.

															An argument ab inconvenienti has been made against our
conclusion in favor of the executive power of removal by the
President, without the consent of the Senate -- that it will open
the door to a reintroduction of the spoils system. The evil of the
spoils system aimed at in the civil service law and its amendments
is in respect of inferior offices. It has never been attempted to
extend that law beyond them. Indeed, Congress forbids its extension
to appointments confirmed by the Senate, except with the consent of
the Senate. Act of January 16, 1883, 22 Stat. 403, 406, c. 27, sec.
7. Reform in the federal civil service was begun by the Civil
Service Act of 1883. It has been developed from that time, so that
the classified service now includes a vast majority of all the
civil officers. It may still be enlarged by further legislation.
The independent power of removal by the President alone, under
present condition, works no practical interference with the merit
system. Political appointments of inferior officers are still
maintained in one important class, that of the first, second and
third class postmasters, collectors of internal revenue, marshals,
collectors of customs, and other officers of that Page 272 U. S. 174 kind, distributed through the country. They are appointed by the
President with the consent of the Senate. It is the intervention of
the Senate in their appointment, and not in their removal, which
prevents their classification into the merit system. If such
appointments were vested in the heads of departments to which they
belong, they could be entirely removed from politics, and that is
what a number of Presidents have recommended. President Hayes,
whose devotion to the promotion of the merit system and the
abolition of the spoils system was unquestioned, said, in his 4th
Annual Message, of December 6, 1880, that the first step to
improvement in the civil service must be a complete divorce between
Congress and the Executive on the matter of appointments, and he
recommended the repeal of the Tenure of Office Act of 1867 for this
purpose. 10 & 11 Messages and Papers of the Presidents,
4555-4557. The extension of the merit system rests with
Congress.

															What, then, are the elements that enter into our decision of
this case? We have first a construction of the Constitution made by
a Congress which was to provide by legislation for the organization
of the Government in accord with the Constitution which had just
then been adopted, and in which there were, as representatives and
senators, a considerable number of those who had been members of
the Convention that framed the Constitution and presented it for
ratification. It was the Congress that launched the Government. It
was the Congress that rounded out the Constitution itself by the
proposing of the first ten amendments, which had, in effect, been
promised to the people as a consideration for the ratification. It
was the Congress in which Mr. Madison, one of the first in the
framing of the Constitution, led also in the organization of the
Government under it. It was a Congress whose constitutional
decisions have always been regarded, as they should be regarded, as
of the greatest Page 272 U. S. 175 weight in the interpretation of that fundamental instrument.
This construction was followed by the legislative department and
the executive department continuously for seventy-three years, and
this although the matter, in the heat of political differences
between the Executive and the Senate in President Jackson's time,
was the subject of bitter controversy, as we have seen. This Court
has repeatedly laid down the principle that a contemporaneous
legislative exposition of the Constitution when the founders of our
Government and framers of our Constitution were actively
participating in public affairs, acquiesced in for a long-term of
years, fixes the construction to be given its provisions. Stuart v.
Laird , 1 Cranch 299, 5
U. S. 309 ; Martin v. Hunter's
Lessee , 1 Wheat. 304, 14 U. S. 351 ; Cohens v.
Virginia , 6 Wheat. 264, 19 U. S. 420 ; Prigg v.
Pennsylvania , 16 Pet. 544, 41 U. S. 621 ; Cooley v. Board of Wardens,
etc. , 12 How. 299, 53 U. S. 315 ; Burroughs-Giles Lithographing Company v. Sarony, 111 U. S. 53 , 111 U. S. 57 ; Ames v. Kansas, 111 U. S. 449 , 111 U. S.
463 -469; The Laura, 114 U.
S. 411 , 114 U. S. 416 ; Wisconsin v. Pelican Ins. Co., 127 U.
S. 265 , 127 U. S. 297 ; McPherson v. Blacker, 146 U. S. 1 , 146 U. S. 28 , 146 U. S. 33 , 146 U. S. 35 ; Knowlton v. Moore, 178 U. S. 41 , 178 U. S. 56 ; Fairbank v. United States, 181 U.
S. 283 , 181 U. S. 308 ; Ex parte Grossman, 267 U. S. 87 , 267 U. S.
118 .

															We are now asked to set aside this construction, thus
buttressed, and adopt an adverse view because the Congress of the
United States did so during a heated political difference of
opinion between the then President and the majority leaders of
Congress over the reconstruction measures adopted as a means of
restoring to their proper status the States which attempted to
withdraw from the Union at the time of the Civil War. The extremes
to which the majority in both Houses carried legislative measures
in that matter are now recognized by all who calmly review the
history of that episode in our Government, leading to articles of
impeachment against President Johnson, and his acquittal. Without
animadverting Page 272 U. S. 176 on the character of the measures taken, we are certainly
justified in saying that they should not be given the weight
affecting proper constitutional construction to be accorded to that
reached by the First Congress of the United States during a
political calm and acquiesced in by the whole Government for
three-quarters of a century, especially when the new construction
contended for has never been acquiesced in by either the executive
or the judicial departments. While this Court has studiously
avoided deciding the issue until it was presented in such a way
that it could not be avoided, in the references it has made to the
history of the question, and in the presumptions it has indulged in
favor of a statutory construction not inconsistent with the
legislative decision of 1789, it has indicated a trend of view that
we should not and cannot ignore. When, on the merits, we find our
conclusion strongly favoring the view which prevailed in the First
Congress, we have no hesitation in holding that conclusion to be
correct, and it therefore follows that the Tenure of Office Act of
1867, insofar as it attempted to prevent the President from
removing executive officer who had been appointed by him by and
with the advice and consent of the Senate, was invalid, and that
subsequent legislation of the same effect was equally so.

															For the reasons given, we must therefore hold that the provision
of the law of 1876, by which the unrestricted power of removal of
first class postmasters is denied to the President, is in violation
of the Constitution, and invalid. This leads to an affirmance of
the judgment of the Court of Claims.

															Before closing this opinion, we wish to express the obligation
of the Court to Mr. Pepper for his able brief and argument as a
friend of the Court. Undertaken at our request, our obligation is
none the less if we find ourselves obliged to take a view adverse
to his. The strong presentation of arguments against the conclusion
of the Court Page 272 U. S. 177 is of the utmost value in enabling the Court to satisfy itself
that it has fully considered all that can be said.

															Judgment affirmed.

															* Maclay shows the vote ten to ten. Journal of William Maclay,
116. John Adams' Diary shows nine to nine. 3 C. F. Adams, Works of
John Adams, 412. Ellsworth's name appears in Maclay's list as
voting against striking out, but not in that of Adams -- evidently
an inadvertence.

															MR. JUSTICE HOLMES, dissenting.

															My brothers McREYNOLDS and BRANDEIS have discussed the question
before us with exhaustive research, and I say a few words merely to
emphasize my agreement with their conclusion.

															The arguments 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 attached to it while it lasts depend on Congress alone.
Congress alone confers on the President the power to appoint to it,
and 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 life for it free
from any interference than I have in accepting the undoubted power
of Congress to decree its end. I have equally 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. Page 272 U. S. 178 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. II 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 Page 272 U. S. 179 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 Page 272 U. S. 180 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 Page 272 U. S. 181 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 Page 272 U. S. 182 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. [ Footnote 1 ] 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. III 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, 22 U. S. 187 .

															"Nor should it ever be lost sight of that the government of Page 272 U. S. 183 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 Page 272 U. S. 184 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, Page 272 U. S. 185 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. . . ." V For the United States, it is asserted -- Except certain judges,
the President may remove all officers, whether executive Page 272 U. S. 186 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 Page 272 U. S. 187 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 Page 272 U. S. 188 has habitually observed them, and this Court has affirmed the
power of Congress therein. [ Footnote 2 ] VI 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, Page 272 U. S. 189 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 Page 272 U. S. 190 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 Page 272 U. S. 191 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. VII 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 Page 272 U. S. 192 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. VIII 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 , 116 U. S. 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 Page 272 U. S. 193 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. IX 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 Page 272 U. S. 194 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. Page 272 U. S. 195 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; Page 272 U. S. 196 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. [ Footnote 3 ]
" Page 272 U. S. 197 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 Page 272 U. S. 198 [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 Page 272 U. S. 199 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 Page 272 U. S. 200 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 Page 272 U. S. 201 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. [ Footnote 4 ] 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. Page 272 U. S. 202 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] Page 272 U. S. 203 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, 58 U. S. 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, Page 272 U. S. 204 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. X 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, Page 272 U. S. 205 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. " Page 272 U. S. 206 "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 Page 272 U. S. 207 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 Page 272 U. S. 208 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." XI 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. " Page 272 U. S. 209 XII 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? Page 272 U. S. 210 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 Page 272 U. S. 211 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. Page 272 U. S. 212 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 Page 272 U. S. 213 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 Page 272 U. S. 214 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 Page 272 U. S. 215 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. XIII 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. [ Footnote 5 ] 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, Page 272 U. S. 216 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. . . . " Page 272 U. S. 217 "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 Page 272 U. S. 218 were clearly presented by the record, and they were decided in
logical sequence. Cooley's Constitutional Limitations, 7th ed.,
231. [ Footnote 6 ]

															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 Page 272 U. S. 219 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 , 113 U. S. 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 Page 272 U. S. 220 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 , 199 U. S. 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. 103 U. S.
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 , 143 U. S. 345 ; United States v. Chamberlin, 219 U.
S. 250 , 219 U. S. 262 ; United States. v. Title Insurance Co., 265 U.
S. 472 , 265 U. S. 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 Page 272 U. S. 221 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 Page 272 U. S. 222 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, 38 U. S. 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 Page 272 U. S. 223 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 Page 272 U. S. 224 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 , 116 U. S. 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 Page 272 U. S. 225 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 , 167 U. S. 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. Page 272 U. S. 226 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 , 182 U. S. 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 Page 272 U. S. 227 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 , 189 U. S. 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 , 182 U. S. 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 Page 272 U. S. 228 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. XIV 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 Page 272 U. S. 229 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. 5 U. S. 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 Page 272 U. S. 230 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." XV 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," Page 272 U. S. 231 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 Page 272 U. S. 232 found for such conduct. This thought was stressed by Mr. Calhoun
in his address to the Senate; from which quotation has been made ante. XVI 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 , 260 U. S.
234 .

															In Sheldon et al. v.
Sill , 8 How. 441, 49 U. S. 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 [1799], 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 Page 272 U. S. 233 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. XVII 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, 50 U. S. 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 Page 272 U. S. 234 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. " Page 272 U. S. 235 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 Page 272 U. S. 236 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. " Page 272 U. S. 237 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. XVIII 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 Page 272 U. S. 238 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 Page 272 U. S. 239 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. Page 272 U. S. 240 [ Footnote 1 ]

															The suggestion that different considerations may possibly apply
to nonconstitutional judicial officers I regard as a mere
smokescreen.

															[ Footnote 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.

															[ Footnote 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."

															June 19,

															"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.

															[ Footnote 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.

															[ Footnote 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.

															[ Footnote 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.

															MR. JUSTICE BRANDEIS, dissenting.

															In 1833, Mr. Justice Story, after discussing in §§ 1537-1543 of
his Commentaries on the Constitution the much debated question
concerning the President's power of removal, said in § 1544:

															"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."

															Postmasters are inferior officers. Congress might have vested
their appointment in the head of the department. [ Footnote 2/1 ] The Act of July 12, 1876, c. 17, § 6,
19 Stat. 78, 80, reenacting earlier legislation, [ Footnote 2/2 ] 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."

															That statute has been in force unmodified Page 272 U. S. 241 for half a century. Throughout the period, it has governed a
large majority of all civil offices to which appointments are made
by and with the advice and consent of the Senate. [ Footnote 2/3 ] May the President, having acted under
the statute insofar as it creates the office and authorizes the
appointment, ignore, while the Senate is in session, the provision
which prescribes the condition under which a removal may take
place?

															It is this narrow question, and this only, which we are required
to decide. We need not consider what power the President, being
Commander in Chief, has over officers in the Army and the Navy. We
need not determine whether the President, acting alone, may remove
high political officers. We need not even determine whether, acting
alone, he may remove inferior civil officers when the Senate is not
in session. It was in session when the President purported to
remove Myers, and for a long time thereafter. All questions of
statutory construction have been eliminated by the language of the
Act. It is settled that, in the absence of a provision expressly
providing for the consent of the Senate to a removal, the clause
fixing the tenure will be construed as a limitation, not as a
grant, and that, under such legislation, the President, acting
alone, has the power of removal. Parsons v. United States, 167 U. S. 324 ; Burnap v. United States, 252 U. S. 512 , 252 U. S. 515 .
But, in defining the tenure, this statute used words of grant.
Congress clearly intended to preclude a removal without the consent
of the Senate.

															Other questions have been eliminated by the facts found, by
earlier decisions of this Court, and by the Page 272 U. S. 242 nature of the claim made. It is settled that, where the statute
creating an office provides for the consent of the Senate to both
appointment and removal, a removal by the President will be deemed
to have been so made if consent is given to the appointment of a
successor. Wallace v. United States, 257 U.
S. 541 . But, in the case at bar, no successor was
appointed until after the expiration of Myers' term. It is settled
that, if Congress had, under clause 2 of section 2, Art II, vested
the appointment in the Postmaster General, it could have limited
his power of removal by requiring consent of the Senate. United
States v. Perkins, 116 U. S. 483 . It
is not questioned here that the President, acting alone, has the
constitutional power to suspend an officer in the executive branch
of the government. But Myers was not suspended. It is clear that
Congress could have conferred upon postmasters the right to receive
the salary for the full term unless sooner removed with the consent
of the Senate. Compare Embry v. United States, 100 U. S. 680 , 100 U. S. 685 .
It is not claimed by the appellant that the Senate has the
constitutional right to share in the responsibility for the removal
merely because it shared, under the Act of Congress, in the
responsibility for the appointment. Thus, the question involved in
the action taken by Congress after the great debate of 1789 is not
before us. The sole question is whether, in respect to inferior
offices, Congress may impose upon the Senate both responsibilities,
as it may deny to it participation in the exercise of either
function.

															In Marbury v.
Madison , 1 Cranch 137, 5 U. S. 167 , it
was assumed, as the basis of decision, that the President, acting
alone, is powerless to remove an inferior civil officer appointed
for a fixed term with the consent of the Senate, and that case was
long regarded as so deciding. [ Footnote
2/4 ] In no Page 272 U. S. 243 case has this Court determined that the President's power of
removal is beyond control, limitation, or regulation by Congress.
Nor has any lower federal court ever so decided. [ Footnote 2/5 ] This is true of the power as it
affects officers in the Army or the Navy and the high political
officer like heads of departments, as well as of the power in
respect to inferior statutory offices in the executive branch.
Continuously for the last fifty-eight years, laws comprehensive in
character, enacted from time to time with the approval of the
President, have made removal from the Page 272 U. S. 244 great majority of the inferior presidential offices dependent
upon the consent of the Senate. Throughout that period these laws
have been continuously applied. We are requested to disregard the
authority of Marbury v. Madison and to overturn this long
established constitutional practice.

															The contention that Congress is powerless to make consent of the
Senate a condition of removal by the President from an executive
office rests mainly upon the clause in § 1 of Article II which
declares that "The executive Power hall be vested in a President."
The argument is that appointment and removal of officials are
executive prerogatives; that the grant to the President of "the
executive Power" confers upon him, as inherent in the office, the
power to exercise these two functions without restriction by
Congress, except insofar a the power to restrict his exercise of
them is expressly conferred Page 272 U. S. 245 upon Congress by the Constitution; that, in respect to
appointment, certain restrictions of the executive power are so
provided for; but that, in respect to removal, there is no express
grant to Congress of any power to limit the President's
prerogative. The simple answer to the argument is this: the ability
to remove a subordinate executive officer, being an essential of
effective government, will, in the absence of express
constitutional provision to the contrary, be deemed to have been
vested in some person or body. Compare 38 U.
S. 13 Pet. 230, 38 U. S. 259 .
But it is not a power inherent in a chief executive. The
President's power of removal from statutory civil inferior offices,
like the power of appointment to them, comes immediately from
Congress. It is true that the exercise of the power of removal is
said to be an executive act, and that, when the Senate grants or
withholds consent to a removal by the President, it participates in
an executive act. [ Footnote 2/6 ]
But the Constitution has confessedly granted to Congress the
legislative power to create offices, and to prescribe the tenure
thereof, and it has not in terms denied to Congress the power to
control removals. To prescribe the tenure involves prescribing the
conditions under which incumbency shall cease. For the possibility
of removal is a condition or qualification of the tenure. [ Footnote 2/7 ] When Congress provides that
the incumbent Page 272 U. S. 246 shall hold the office for four years unless sooner removed with
the consent of the Senate, it prescribes the term of the
tenure.

															It is also argued that the clauses in Article II, § 3, of the
Constitution, which declare that the President "shall take Care
that the Laws be faithfully executed, and shall Commission all the
Officers of the United States" imply a grant to the President of
the alleged uncontrollable power of removal. I do not find in
either clause anything which supports this claim. The provision
that the President "shall Commission all the Officers of the United
States" clearly bears no such implication. Nor can it be spelled
out of the direction that "he shall take Care that the Laws be
faithfully executed." There is no express grant to the President of
incidental powers resembling those conferred upon Congress by
clause 18 of Article I, § 8. A power implied on the ground that it
is inherent in the executive, must, according to established
principles Page 272 U. S. 247 of constitutional construction, be limited to "the least
possible power adequate to the end proposed." Compare Marshall
v. Gordon, 243 U. S. 521 , 243 U. S. 541 ; Michaelson v. United States, 266 U. S.
42 , 266 U. S. 66 .
The end to which the President's efforts are to be directed is not
the most efficient civil service conceivable, but the faithful
execution of the laws consistent with the provisions therefor made
by Congress. A power essential to protection against pressing
dangers incident to disloyalty in the civil service may well be
deemed inherent in the executive office. But that need, and also
insubordination and neglect of duty, are adequately provided
against by implying in the President the constitutional power of
suspension. [ Footnote 2/8 ] Such
provisional executive power is comparable to the provisional
judicial power of granting a restraining order without notice to
the defendant and opportunity to be heard. Power to remove, as well
as to suspend, a high political officer might conceivably be deemed
indispensable to democratic government and, hence, inherent in the
President. But power to remove an inferior administrative officer
appointed for a fixed term cannot conceivably be deemed an
essential of government.

															To imply a grant to the President of the uncontrollable power of
removal from statutory inferior executive offices involves an
unnecessary and indefensible limitation upon the constitutional
power of Congress to fix the tenure of inferior statutory offices.
That such a limitation cannot be justified on the ground of
necessity is demonstrated by the practice of our governments, state
and national. In none of the original thirteen States did the chief
executive Page 272 U. S. 248 possess such power at the time of the adoption of the Federal
Constitution. In none of the forty-eight States has such power been
conferred at any time since by a state constitution, [ Footnote 2/9 ] with a single possible
exception. [ Footnote 2/10 ] In a
few States, the legislature has granted to the governor, or
other Page 272 U. S. 249 appointing power, the absolute power of removal. [ Footnote 2/11 ] The legislative practice
of most States reveals a decided tendency to limit, rather than to
extend, the governor's power of removal. [ Footnote 2/12 ] The practice of the Federal Government
will be set forth in detail. Page 272 U. S. 250 Over removal from inferior civil offices, Congress has, from the
foundation of our Government, exercised continuously some measure
of control by legislation. The instances of such laws are many.
Some of the statutes were directory in character. Usually, they
were mandatory. Some of them, comprehensive in scope, have endured
for generations. During the first forty years of our Government,
there was no occasion to curb removals. [ Footnote 2/13 ] Then, the power of Congress was exerted
to ensure removals. Thus, the Act of September 2, 1789, c. 12, 1
Stat. 65, 67, establishing the Treasury Department, provided by § 8
that, if any person appointed to any office by that Act should be
convicted of offending against any of its provisions, he shall
"upon conviction be removed from office." The Act of March 3, 1791,
c. 18, § 1, 1 Stat. 215, extended the provision to every clerk
employed in the Department. Page 272 U. S. 251 The Act of May 8, 1792, c. 37, § 12, 1 Stat. 279, 281, extended
it further to the Commissioner of the Revenue and the Commissioners
of Loans, presidential appointments. The first Tenure of Office
Act, May, 15, 1820, c. 102, 3 Stat. 582, introduced the four-year
term, which was designed to ensure removal under certain
conditions. [ Footnote 2/14 ] The
Act of January 31, 1823, c. 9, § 3, 3 Stat. 723, directed that
officers receiving public money and failing to account quarterly
shall be dismissed by the President unless they shall account for
such default to his satisfaction. The Act of July 2, 1836, c. 270,
§§ 26, 37, 5 Stat. 80, 86, 88, which first vested the appointment
of postmasters in the President by and with the advice and consent
of the Senate, directed that postmasters and others offending
against certain prohibitions "be forthwith dismissed from office;"
and as to other offences provided Page 272 U. S. 252 for such dismissal upon conviction by any court. The Act of July
17, 1854, c. 84, § 6, 1 Stat. 305, 306, which authorized the
President to appoint registers and receivers, provided that,

															"on satisfactory proof that either of said officers, or any
other officer, has charged or received fees or other rewards not
authorized by law, he shall be forthwith removed from office.
[ Footnote 2/15 ]"

															In the later period, which began after the spoils system had
prevailed for a generation, [ Footnote
2/16 ] the control of Congress over inferior offices was exerted
to prevent removals. The removal clause here in question was first
introduced by the Currency Act of February 25, 1863, c. 58, § 1, 12
Stat. 665, which was approved by President Lincoln. That statute
provided for the appointment of the Comptroller, Page 272 U. S. 253 and that he "shall hold his office for the term of five years
unless sooner removed by the President, by and with the advice and
consent of the Senate." In 1867, this provision was inserted in the
Tenure of Office Act, March 2, 1867, c. 154, §§ 1, 3, 6, 14 Stat.
431, which applied, in substance, to all presidential offices. It
was passed over President Johnson's veto. [ Footnote 2/17 ] In 1868, after the termination of the
impeachment proceedings, the removal clause was inserted in the
Wyoming Act of July 25, 1868, c. 235, §§ 2, 3, 9, 10, 15 Stat.
178-181, which was approved by President Johnson.

															By Act of June 8, 1872, c. 335, 17 Stat. 283, a consolidation
and revision of the postal laws was made. T he removal clause was
inserted in § 63 in the precise form in which it had first appeared
in the Currency Act of 1863. From the Act of 1872, it was carried
as § 3830 into Revised Statutes, which consolidated the statutes in
force December 1, 1873. The Act of 1872 was amended by the Act of
June 23, 1874, c. 456, § 11, 18 Stat. 231, 234, so as to reduce the
classes of postmasters outside New York City from five to four. The
removal clause was again inserted. When the specific classification
of New York City in § 11 of the Act of 1874 was repealed by the Act
of July 12 1876, c. 179, § 4, 19 Stat. 80, the removal clause was
retained. Thus, postmasters of the first three classes were made,
independently of the Tenure of Office Act, subject to the removal
clause. Each of these postal statutes was approved by President
Grant. When President Cleveland secured, by Act of March 3, 1887,
c. 353, 24 Stat. 500, the repeal of §§ 1767 to 1772 of Revised
Statutes (which had reenacted as to all presidential offices the
removal provision of the Tenure of Office Act), he made no attempt
to apply the repeal to postmasters, although postmasters
constituted then, as they have ever since, a large majority of all
presidential appointees. The removal clause, which Page 272 U. S. 254 had become operative as to them by specific legislation, was
continued in force. For more than half a century, this postal law
has stood unmodified. No President has recommended to Congress that
it be repealed. A few proposals for repeal have been made by bills
introduced in the House. Not one of them has been considered by it.
[ Footnote 2/18 ] It is significant
that President Johnson, who vetoed in 1867 the Tenure of Office Act
which required the Senate's consent to the removal of high
political officers, approved other acts containing the removal
clause which related only to inferior officers. Thus, he had
approved the Act Page 272 U. S. 255 of July 13, 1866, c. 176, § 5, 14 Stat. 90, 92, which provided
that

															"no officer in the military or naval service shall, in time of
peace, be dismissed from service except upon and in pursuance of
the sentence of a court-martial to that effect, or in commutation
thereof. [ Footnote 2/19 ]"

															And in 1868, he approved the Wyoming Act, which required such
consent to the removal of inferior officers who had been appointed
for fixed terms. It is significant also that the distinction
between high political officers and inferior ones had been urged in
the Senate in 1867 by Reverdy Johnson, when opposing the passage of
the Tenure of Office Act. [ Footnote
2/20 ] It had apparently been recognized in 1789 at the time of
the great debate in the First Congress, and by Chief Justice
Marshall in 1807. [ Footnote
2/21 ] Page 272 U. S. 256 It had been repeatedly pointed out in later years. [ Footnote 2/22 ] Page 272 U. S. 257 The administrative action of President Johnson under the Tenure
of Office Act indicates likewise a recognition of this distinction
between inferior and high political offices. The procedure
prescribed in § 2 required of the President a report to the Senate
of the reasons for a suspension, and also made its consent
essential to a removal. In respect to inferior officers, this
course appears to have been scrupulously observed by the President
in every case. This is true for the period before the institution
of the impeachment proceedings [ Footnote 2/23 ] as well as for the later period.
[ Footnote 2/24 ] On the other
hand, in the case of a high political officer, Secretary of War
Stanton, President Johnson declined on several grounds to follow
the procedure prescribed by the Act. 16 Ex.Journ. 95. The
requirement that the President should report reasons for suspension
to the Senate was not retained by the amended Tenure of Office Act
of April 5, 1869, c. 10, 16 Stat. 6; the other provisions, however,
were substantially reenacted, and affirmative evidence of
compliance by succeeding Presidents with its requirements as to
inferior officers is recorded between 1869 and the repeal of the
Act in 1887. Suspensions, and not removals, were made during
recess. [ Footnote 2/25 ] In those
rare instances where removals Page 272 U. S. 258 were sought by means other than the appointment of a
"successor," Presidents Grant, Hayes, Garfield and Arthur requested
the Senate's consent to the removals. [ Footnote 2/26 ] Where the Senate failed to confirm the
nomination of a successor, the former incumbent retained office
until either the expiry of his commission or the confirmation of a
successor. [ Footnote 2/27 ] Page 272 U. S. 259 From the foundation of the Government to the enactment of the
Tenure of Office Act, during the period while it remained in force,
and from its repeal to this time, the administrative practice in
respect to all offices has, so far as appears, been consistent with
the existence in Congress of power to make removals subject to the
consent of the Senate. [ Footnote
2/28 ] The practice during the earlier period was described by
Webster in addressing the Senate on February 16, 1835:

															"If one man be Secretary of State, and another be appointed, the
first goes out by the mere force of the appointment Page 272 U. S. 260 of the other, without any previous act of removal whatever. And
this is the practice of the government, and has been from the
first. In all the removals which have been made, they have
generally been effected simply by making other appointments. I
cannot find a case to the contrary. There is no such thing as any
distinct official act of removal. I have looked into the practice
and caused inquiries to be made in the departments, and I do not
learn that any such proceeding is known as an entry or record of
the removal of an officer from office, and the President could only
act, in such cases, by causing some proper record or entry to be
made, as proof of the Page 272 U. S. 261 fact of removal. I am aware that there have been some cases in
which notice has been sent to persons in office that their services
are, or will be, after a given day, dispensed with. These are
usually cases in which the object is not to inform the incumbent
that he is removed, but to tell him that a successor either is, or
by a day named will be, appointed."

															4 Works, 8th ed., 189.

															In 1877, President Hayes, in a communication to the Senate in
response to a resolution requesting information as to whether
removals had been made prior to the appointment of successors,
said:

															"In reply, I would respectfully inform the Senate that, in the
instances referred to, removals had not been made at the time the
nominations were sent to the Senate. The form used for such
nominations was one found to have ben in existence and heretofore
used in some of the Departments, and was intended to inform the
Senate that, if the nomination proposed were approved, it would
operate to remove an incumbent whose name was indicated. R. B.
Hayes."

															7 Messages and Papers of the President, 481.

															Between 1877 and 1899, the latest date to which the records of
the Senate are available for examination, the practice has, with
few exceptions, been substantially the same. [ Footnote 2/29 ] It is doubtless because of this
practice, and the long settled rule recently applied in Wallace
v. United States, 257 U. S. 541 , 257 U. S. 545 ,
that this Court has not had occasion heretofore to pass upon the
constitutionality of the removal clause. Page 272 U. S. 262 The practice of Congress to control the exercise of the
executive power of removal from inferior offices is evidenced by
many statutes which restrict it in many ways besides the removal
clause here in question. Each of these restrictive statutes became
law with the approval of the President. Every President who had
held office since 1861, except President Garfield, approved one or
more of such statutes. Some of these statutes, prescribing a fixed
term, provide that removal shall be made only or one of several
specified causes. [ Footnote 2/30 ]
Some provide a fixed term, subject generally to removal for cause.
[ Footnote 2/31 ] Some provide Page 272 U. S. 263 for removal only after hearing. [ Footnote 2/32 ] Some provide a fixed term, subject to
removal for reasons to be communicated by the President to the
Senate. [ Footnote 2/33 ] Some
impose the restriction in still other ways. Thus, the Act of August
24, 1912, c. 389, § 6, 37 Stat. 539, 555, which deals only with
persons in the classified civil service, prohibits removal "except
for such cause as will promote the efficiency of the service and
for reasons given in writing," and forbids removal for one cause
which had theretofore been specifically prescribed by President
Roosevelt and President Taft as a ground for dismissal. [ Footnote 2/34 ] The Budget Page 272 U. S. 264 Act of June 10, 1921, c. 18 § 303, 42 Stat. 20, 24, provides a
fixed term for the Comptroller General and the Assistant
Comptroller General, and makes these officers removable only by
impeachment or by Joint resolution of Congress, after hearing, for
one of the causes specified. It should be noted that, while
President Wilson had, on June 4, 1920, vetoed an earlier Budget
Act, which, like this, denied to the President any participation in
the removal, he had approved the Mediation and Conciliation Act of
July 15, 1918, and the Railroad Labor Board Act of February 28,
1920, which prohibited removals except for the causes therein
specified.

															The assertion that the mere grant by the Constitution of
executive power confers upon the President as a prerogative the
unrestricted power of appointment and of removal from executive
offices, except so far as otherwise expressly provided by the
Constitution, is clearly inconsistent also with those statutes
which restrict the exercise by the President of the power of
nomination. There is not a word in the Constitution which, in
terms, authorizes Page 272 U. S. 265 Congress to limit the President's freedom of choice in making
nominations for executive offices. It is to appointment, as
distinguished from nomination, that the Constitution imposes in
terms the requirement of Senatorial consent. But a multitude of
laws have been enacted which limit the President's power to make
nominations, and which, through the restrictions imposed, may
prevent the selection of the person deemed by him best fitted. Such
restriction upon the power to nominate has been exercised by
Congress continuously since the foundation of the Government. Every
President has approved one or more of such acts. Every President
has consistently observed them. This is true of those offices to
which he makes appointments without the advice and consent of the
Senate, as well as of those for which its consent is required.

															Thus, Congress has, from time to time, restricted the
President's selection by the requirement of citizenship. [ Footnote 2/35 ] Page 272 U. S. 266 It has limited the power of nomination by providing that the
office may be held only by a resident of the United States;
[ Footnote 2/36 ] of a State;
[ Footnote 2/37 ] of a particular
State; [ Footnote 2/38 ] of a
particular Page 272 U. S. 267 district; [ Footnote 2/39 ] of a
particular territory; [ Footnote
2/40 ] of the District of Columbia; [ Footnote 2/41 ] of a particular foreign country.
[ Footnote 2/42 ] It has limited
the power of nomination further by prescribing specific
professional attainments, [ Footnote
2/43 ] or occupational Page 272 U. S. 268 experience. [ Footnote 2/44 ] It
has, in other cases, prescribed the test of examinations. [ Footnote 2/45 ] It has imposed the
requirement of Page 272 U. S. 269 age; [ Footnote 2/46 ] of sex ;
[ Footnote 2/47 ] of race;
[ Footnote 2/48 ] of property;
[ Footnote 2/49 ] and of habitual
temperance in the use of intoxicating liquors. [ Footnote 2/50 ] Congress Page 272 U. S. 270 has imposed like restrictions on the power of nomination by
requiring political representation; [ Footnote 2/51 ] or that the selection Page 272 U. S. 271 be made on a nonpartisan basis. [ Footnote 2/52 ] It has required in some cases that the
representation be industrial; [ Footnote 2/53 ] in Page 272 U. S. 272 others, that it be geographic. [ Footnote 2/54 ] It has at times required that the
President's nominees be take from, or include Page 272 U. S. 273 representatives from, particular branches or departments of the
Government. [ Footnote 2/55 ] By
still other statutes, Congress Page 272 U. S. 274 has confined the President's selection to a small number of
persons to be named by others. [ Footnote 2/56 ]

															The significance of this mass of legislation restricting the
power of nomination is heightened by the action which President
Jackson and the Senate took when the right to impose such
restrictions was, so far as appears, first mooted. On February 3,
1831, the Senate resolved that it was inexpedient to appoint a
citizen of one State to an office created or made vacant in another
State of which such citizen was not a resident, unless an apparent
necessity for such appointment existed. 4 Ex.Journ. 150. Page 272 U. S. 275 Several nominations having been rejected by the Senate in
accordance with the terms of this resolution, President Jackson
communicated his protest to the Senate, on March 2, 1833, saying
that he regarded "that resolution, in effect, as an
unconstitutional restraint upon the authority of the President in
relation to appointments to office." Thereupon, the Senate
rescinded the resolution of 1831. 4 Ex.Journ. 331. But that
Congress had the power was not questioned. The practice of
prescribing by statute that nominations to an inferior presidential
office shall be limited to residents of a particular State or
district has prevailed, without interruption, for three-quarters of
a century. [ Footnote 2/57 ]

															The practical disadvantage to the public service of denying to
the President the uncontrollable power of removal from inferior
civil offices would seem to have been exaggerated. Upon the
service, the immediate effect would ordinarily be substantially the
same whether the President, acting alone, has or has not the power
of removal. For he can, at any time, exercise his constitutional
right to suspend an officer and designate some other person to act
temporarily in his stead, and he cannot, while the Senate is in
session, appoint a successor without its consent. Compare Embry
v. United States, 100 U. S. 680 . On
the other hand, to the individual in the public service, and to the
maintenance of its morale, the existence of a power in Congress to
impose upon the Senate the duty to share in the responsibility for
a removal is of paramount importance. The Senate's consideration
of Page 272 U. S. 276 a proposed removal may be necessary to protect reputation and
emoluments of office from arbitrary executive action. Equivalent
protection is afforded to other inferior officers whom Congress has
placed in the classified civil service and which it authorizes the
heads of departments to appoint and to remove without the consent
of the Senate. Act of August 24, 1912, c. 389, § 6, 37 Stat. 539,
55. The existence of some such provision is a common incident of
free governments. In the United States, where executive
responsibility is not safeguarded by the practice of parliamentary
interpellation, such means of protection to persons appointed to
office by the President with the consent of the Senate is of
special value.

															Until the Civil Service Law, January 16, 1883, c. 27, 22 Stat.
403, was enacted, the requirement of consent of the Senate to
removal and appointment was the only means of curbing the abuses of
the spoils system. The contest over making Cabinet officers subject
to the provisions of the Tenure of Office Act of 1867 has obscured
the significance of that measure as an instrument designed to
prevent abuses in the civil service. [ Footnote 2/58 ] But the importance of the measure as a
means of civil service reform was urged at the time of its passage;
[ Footnote 2/59 ] again, Page 272 U. S. 277 when its repeal was resisted in 1869 [ Footnote 2/60 ] and in 1872; [ Footnote 2/61 ] and finally in 1887, when its repeal was
effected. [ Footnote 2/62 ] That
Act Page 272 U. S. 278 was one of two far reaching measures introduced in 1866 aimed at
the abuses of executive patronage. The Jenckes bill was to
establish the classified service. The Tenure of Office bill was to
control removals from presidential offices. Like the Jenckes bill,
it applied, when introduced, only to inferior offices. The Jenckes
bill, reported by the House Committee on June 13, 1866, was finally
tabled in the House on February 6, 1867. [ Footnote 2/63 ] The Tenure of Office bill was reported
out in the House on December 5, 1866, Page 272 U. S. 279 was amended by the Conference Committee so as to apply to
Cabinet officers, and, having passed both Houses, was sent to the
President on February 20, 1867, and passed over his veto on March
2, 1867.

															The fact that the removal clause had been inserted in the
Currency bill of 1863, shows that it did not originate in the
contest of Congress with President Johnson, as has been sometimes
stated. Thirty years before that, it had been recommended by Mr.
Justice Story as a remedial measure, after the wholesale removals
of the first Jackson administration. The Post Office Department was
then the chief field for plunder. Vacancies had been created in
order that the spoils of office might be distributed among
political supporters. Fear of removal had been instilled in
continuing office holders to prevent opposition or lukewarmness in
support. Gross inefficiency and hardship had resulted. Several
remedies were proposed. One of the remedies urged was to require
the President to report to the Senate the reasons for each removal.
[ Footnote 2/64 ] The second was to
take the power of appointing postmasters from the Postmaster
General and to confer it upon the President, subject to the consent
of the Senate. [ Footnote 2/65 ] A
third Page 272 U. S. 280 proposal was to require consent of the Senate also to removals.
[ Footnote 2/66 ] Experience since
has taught that none of these remedies is effective. Then, however,
Congress adopted the second measure. The evil continued, and the
struggle against the spoils system was renewed. The Page 272 U. S. 281 other crude remedies which had been rejected -- accountability
of the President to the Senate [ Footnote 2/67 ] and the requirement of its consent to
removals [ Footnote 2/68 ] -- were
again considered. Page 272 U. S. 282 And both continued to be urged upon Congress, even after the
fourth and the more promising remedy enquiry into fitness for
office and competitive examinations had been proposed. For a
generation, the reformers failed to secure the adoption of any
further measure.

															The first substantial victory of the civil service reform
movement, though a brief one, was the insertion of the removal
clause in the Currency bill of 1863. [ Footnote 2/69 ] The next forward step was taken by the
Consular and Diplomatic Appropriation Act, June 20, 1864, c. 136, §
2, 13 Stat. 137, 139-140, also approved by President Lincoln, which
contained a provision that consular clerks should be appointed by
the President after examination, and that

															"no clerk so appointed shall be removed from office except for
cause stated in writing, which shall be submitted to congress at
the session first following such removal. [ Footnote 2/70 ]"

															It was in the next Congress that the removal clause was applied
generally by the Tenure of Office Act. The long delay in adopting
legislation to curb removals was not because Congress accepted the
doctrine that the Constitution Page 272 U. S. 283 had vested in the President uncontrollable power over removal.
It was because the spoils system held sway.

															The historical data submitted present a legislative practice,
established by concurrent affirmative action of Congress and the
President, to make consent of the Senate a condition of removal
from statutory inferior, civil, executive offices to which the
appointment is made for a fixed term by the President with such
consent. They show that the practice has existed, without
interruption, continuously for the last fifty-eight years; that,
throughout this period, it has governed a great majority of all
such offices; that the legislation applying the removal clause
specifically to the office of postmaster was enacted more than half
a century ago, and that recently the practice has, with the
President's approval, been extended to several newly created
offices. The data show further that the insertion of the removal
clause in acts creating inferior civil offices with fixed tenure is
part of the broader legislative practice, which has prevailed since
the formation of our Government, to restrict or regulate in many
ways both removal from and nomination to such offices. A persistent
legislative practice which involves a delimitation of the
respective powers of Congress and the President, and which has been
so established and maintained, should be deemed tantamount to
judicial construction in the absence of any decision by any court
to the contrary. United States v. Midwest Oil Co., 236 U. S. 459 , 236 U. S.
469 .

															The persuasive effect of this legislative practice is
strengthened by the fact that no instance has been found, even in
the earlier period of our history, of concurrent affirmative action
of Congress and the President which is inconsistent with the
legislative practice of the last fifty-eight years to impose the
removal clause. Nor has any instance been found of action by
Congress which involves Page 272 U. S. 284 recognition in any other way of the alleged uncontrollable
executive power to remove an inferior civil officer. The action
taken by Congress in 1789 after the great debate does not present
such an instance. The vote then taken did not involve a decision
that the President had uncontrollable power. It did not involve a
decision of the question whether Congress could confer upon the
Senate the right, and impose upon it the duty, to participate in
removals. It involved merely the decision that the Senate does not,
in the absence of legislative grant thereof, have the right to
share in the removal of an officer appointed with its consent, and
that the President has, in the absence of restrictive legislation,
the constitutional power of removal without such consent. Moreover,
as Chief Justice Marshall recognized, the debate and the decision
related to a high political office, not to inferior ones. [ Footnote 2/71 ]

															Nor does the debate show that the majority of those then in
Congress thought that the President had the uncontrollable power of
removal. The Senators divided equally in their votes. As to their
individual views, we lack knowledge; for the debate was secret.
[ Footnote 2/72 ] In the House,
only 24 of the 54 members voting took part in the debate. Of the
24, only 6 appear to have held the opinion that the President
possessed the uncontrollable power of removal. The clause which
involve a denial of the claim that the Senate had the
constitutional right to participate in removals was adopted, so far
as appears, by aid of the votes of others who believed it expedient
for Page 272 U. S. 285 Congress to confer the power of removal upon the President
alone. [ Footnote 2/73 ] This is
indicated both by Madison's appeal for support [ Footnote 2/74 ] and by the action taken on Benson's
motions. [ Footnote 2/75 ] Page 272 U. S. 286 It is true that several Presidents have asserted that the
Constitution conferred a power of removal uncontrollable Page 272 U. S. 287 by Congress. [ Footnote 2/76 ]
But, of the many statutes enacted since the foundation of our
Government which in express terms controlled the power of removal,
either by the clause here in question or otherwise, only two were
met with a veto: The Tenure of Office Act of 1867, which related to
high political officers among others, and the Budget Act of 1920,
which denied to the President any participation in the removal of
the Comptroller and Assistant Comptroller. One was passed over the
President's veto; the other was approved by the succeeding
President. It is true also that several Presidents have at times
insisted that, for the exercise of their power they were not
accountable to the Senate. [ Footnote
2/77 ] But even these Presidents Page 272 U. S. 288 have at other times complied with requests that the ground of
removal of inferior officers be stated. [ Footnote 2/78 ] Many of the Presidents have furnished
the desired information Page 272 U. S. 289 without questioning the right to request it. [ Footnote 2/79 ] And neither the Senate nor the
House has at any time receded Page 272 U. S. 290 from the claim that Congress has power both to control by
legislation removal from inferior offices and to require the
President to report to it the reasons for removals made therefrom.
[ Footnote 2/80 ] Moreover, no
instance has been found in which President refused to comply with
an Act of Congress requiring that the reasons for removal of an
inferior officer be given. On the contrary, President Cleveland,
who refused to accede to the request of the Senate that he state
the reasons for the removal of Duskin, had, in the case of
Burchard, complied, without protest or reservation, Page 272 U. S. 291 with the requirement of the Act of February 12, 1873, c. 131, §
1, 17 Stat. 424 (now Rev.Stat. § 343) that the reasons for the
removal of the Director of the Mint be communicated by him to the
Senate. 25 Ex.Journ. 242. A construction given to the Constitution
by the concurrent affirmative action of Congress and the President
continued throughout a long period without interruption should be
followed despite the isolated utterances, made in the heat of
political controversies not involving the question here in issue by
individual Presidents supported only by the advice of the Attorney
General. [ Footnote 2/81 ]

															The separation of the powers of government did not make each
branch completely autonomous. It left each in some measure
dependent upon the others, as it left to each power to exercise, in
some respects, functions in their nature executive, legislative and
judicial. Obviously the President cannot secure full execution of
the Page 272 U. S. 292 laws, if Congress denies to him adequate means of doing so. Full
execution may be defeated because Congress declines to create
offices indispensable for that purpose. Or because Congress, having
created the office, declines to make the indispensable
appropriation. Or because Congress, having both created the office
and made the appropriation, prevents, by restrictions which it
imposes, the appointment of officials who in quality and character
are indispensable to the efficient execution of the law. If, in any
such way, adequate means are denied to the President, the fault
will lie with Congress. The President performs his full
constitutional duty if, with the means and instruments provided by
Congress and within the limitations prescribed by it, he uses his
best endeavors to secure the faithful execution of the laws
enacted. Compare 37 U. S. United
States, 12 Pet. 524, 37 U. S. 613 , 37 U. S.
626 .

															Checks and balances were established in order that this should
be "a government of laws, and not of men." As White said in the
House in 1789, an uncontrollable power of removal in the Chief
Executive "is a doctrine not to be learned in American
governments." Such power had been denied in Colonial Charters,
[ Footnote 2/82 ] and even under
Proprietary Page 272 U. S. 293 Grants [ Footnote 2/83 ] and
Royal Commissions. [ Footnote
2/84 ] It had been denied in the thirteen States before the
framing of the Federal Constitution. [ Footnote 2/85 ] The doctrine of the separation of powers
was adopted by the convention of 1787 not to promote efficiency,
but to preclude the exercise of arbitrary power. The purpose was
not to avoid friction but, by means of the inevitable friction
incident to the distribution of the governmental powers among three
departments, to save the people from autocracy. In order to prevent
arbitrary executive action, the Constitution provided in terms that
presidential appointments be made with the consent of the Senate,
unless Congress should otherwise provide, and this clause was
construed by Alexander Hamilton in The Federalist, No. 77, as
requiring like consent to removals. [ Footnote 2/86 ] Limiting further executive Page 272 U. S. 294 prerogatives customary in monarchies, the Constitution empowered
Congress to vest the appointment of inferior officers, "as they
think proper, in the President alone, in the Courts of Law, or in
the Heads of Departments." Nothing in support of the claim of
uncontrollable power can be inferred from the silence of the
Convention of 1787 on the subject of removal. For the outstanding
fact remains that every specific proposal to confer such
uncontrollable power upon the President was rejected. [ Footnote 2/87 ] In America, as in England,
the conviction prevailed then that the people must look to
representative Page 272 U. S. 295 assemblies for the protection of their liberties. And protection
of the individual, even if he be an official, from the arbitrary or
capricious exercise of power was then believed to be an essential
of free government.

															[ Footnote 2/1 ]

															Prior to the Act of July 2, 1836, c. 270, § 33, 5 Stat. 80, 87,
all postmasters were appointed by the Postmaster General. Fourth
class postmasters are still appointed by him. See Acts of
May 8, 1794, c. 23, § 3, 1 Stat. 354, 357; April 30, 1810, c. 37,
§§ 1, 5, 28, 40, 42, 2 Stat. 592; March 3, 1825, c. 64, § 1, 4
Stat. 102; March 3, 1863, c. 71, § 1, 12 Stat. 701; July 1, 1864,
c.197, § 1, 13 Stat. 335.

															[ Footnote 2/2 ]

															The removal provision was introduced specifically into the
postal legislation by Act of Jan 8, 1872, c. 335, § 63, 17 Stat.
283, 292, and reenacted, in substance, in Act of June 23, 1874, c.
456, § 11, 18 Stat. 231, 234; in the Revised Statutes, § 3830, and
the Act of 1876.

															[ Footnote 2/3 ]

															During the year ending June 30, 1913, there were in the civil
service 10,543 presidential appointees. Of these 8,423 were
postmasters of the first, second and third classes. Report of U.S.
Civil Service Commission for 1913, p. 8. During the year ending
June 30, 1923, the number of presidential appointees was 16,148.
The number of postmasters of the first, second and third classes
was 14,261. Report for 1923, pp. xxxii, 100.

															[ Footnote 2/4 ]

															In McAllister v. United States, 141 U.
S. 174 , 141 U. S. 189 ,
it was said by this Court of the decision in Marbury v.
Madison: "On the contrary, the Chief Justice asserted the authority of
Congress to fix the term of a Justice of the Peace in the District
of Columbia beyond the power of the President to lessen it by
removal. . . ."

															The same significance is attached to the decision in 1 Kent,
Commentaries, 12th ed., 311, note 1.

															Reverdy Johnson, who had been Attorney General, said of Marbury v. Madison while addressing the Senate on Jan. 15,
1867, in opposition to the Tenure of Office bill:

															"But, says my brother and friend from Oregon, that case decided
that the President had no right to remove. Surely that is an entire
misapprehension. The Constitution gives to the President the
authority to appoint, by and with the advice and consent of the
Senate, to certain high offices, but gives to Congress the power to
vest the appointment and to give the removal of inferior officers
to anybody they think proper, and these justices of the peace were
inferior, and not high, officers within the meaning of those two
terms in the Constitution. Congress, therefore, by providing that
such an officer should hold his commission for four years, removed
the officer from the power of removal of the President, as they
could have taken from him the power to appoint. Nobody doubts that,
if they were inferior officers, as they were, Congress might have
given the power to appoint those officers to the people of the
district by election, or to any individual that they might think
proper, or to any tribunal other than the executive department of
the Government. They had a right, although they thought proper to
give it to the President himself, to provide that it should endure
for four years against any such power of removal. That is all the
case decided upon that question."

															Cong.Globe, 39th Cong., 2d sess., 461. See 272 U.S.
52 fn2/71|>Note 71, infra. [ Footnote 2/5 ]

															In United States v. Avery, 1 Deady 204, the statute
creating the office did not prescribe a fixed tenure and there was
no provision for removal only by and with the consent of the
Senate. In United States v.
Guthrie , 17 How. 284, 58 U. S. 305 ,
Mr. Justice McLean, dissenting, denied that the President's power
of removal was uncontrollable. In Ex parte
Hennen , 13 Pet. 230, 238 [argument of counsel --
omitted], it was stated that, where the power of appointment is
vested in the head of a department "the President has certainly no
power to remove."

															State courts have uniformly held that, in the absence of express
provision in their constitution to the contrary, legislative
restrictions upon the power of removal by the governor, or other
appointing power, are valid as applied to persons holding statutory
offices. Commonwealth v. Sutherland, 3 Serg. & R. 145,
155; Commonwealth v. Bussier, 5 Serg. & R. 451; also Bruce v. Matlock, 86 Ark. 555; People v.
Jewett, 6 Cal. 291; Gray v. McLendon, 134 Ga. 224; Dubuc v. Voss, 19 La.Ann. 210; State v. Cowen, 96
Ohio St. 277; Att'y Gen'l v. Brown, 1 Wis. 513. Compare Rankin v. Jauman, 4 Ida. 53; State v.
Curtis, 180 Ind.191; Shira v. State, 187 Ind. 441; State v. Henderson, 145 Ia. 657; Markey v.
Schunk, 152 Ia. 508; State v. Martin, 87 Kan. 817; State v. Sheppard, 192 Mo. 497; State v.
Sanderson, 280 Mo. 258; State v. District Court, 53
Mont. 350;. State v. Archibald, 5 N.D. 359; State v.
Canson, 58 Ohio St. 313; Cameron v.
Parker, 2 Okla. 277 ; Christy v. City of Kingfisher, 13 Okla. 585 ; State v. Hewitt, 3 S.D. 187; State v. Kipp, 10
S.D. 495; Skeen v. Paine, 32 Utah 295; State v.
Burke, 8 Wash. 412; State v. Grant, 14 Wyo. 41.

															[ Footnote 2/6 ]

															Power to remove has been held not to be inherently an executive
power in States whose constitution provides in terms for separation
of the powers. See 272 U.S.
52 fn2/12|>note 12 infra; also Dullan v. Willson, 53
Mich. 392.

															[ Footnote 2/7 ]

															"If a law were to pass declaring that district attorneys or
collectors of customs should hold their offices four years unless
removed on conviction for misbehavior, no one could doubt its
constitutional validity, because the legislature is naturally
competent to prescribe the tenure of office. And is a reasonable
check on the power of removal anything more than a qualification of
the tenure of office?"

															Webster, Feb. 16, 1835, 4 Works, 8th ed., 197.

															"It is the legislative authority which creates the office,
defines its duties, and may prescribe its duration. I speak, of
course, of offices not created by the constitution, but the law.
The office, coming into existence by the will of Congress, the same
will may provide how and in what manner the office and the officer
shall both cease to exist. It may direct the conditions on which he
shall hold the office, and when and how he shall be dismissed."

															Clay, Feb. 18, 1835, 11 Cong. Deb. 518.

															"Congress shall have 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 office 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."

															Calhoun, Feb. 20, 1835, 11 Cong.Deb. 553.

															[ Footnote 2/8 ] See Debate of 1789 (June 17), Stone:

															"All the difficulties and embarrassments that have been
mentioned can be removed by giving to the President the power of
suspension during the recess of the Senate, and I think that an
attention to the Constitution will lead us to decide that this is
the only proper power to be vested in the President of the United
States."

															1 Ann.Cong. 495; also Gerry, 1 Ann.Cong. 504; Sherman,
1 Ann.Cong. 492; Jackson, 1 Ann.Cong. 489.

															[ Footnote 2/9 ]

															New York: Constitution of 1777, amended 1801. The powers of
appointment and removal were vested in the Council of Appointment. People v. Foot, 19 Johns. 58. By later constitutions or
amendments, varying restrictions were imposed on the governor's
power of removal. 4 Lincoln, Constitutional History of New York,
554-594, 724-733. Massachusetts: Constitution of 1780. Appointments
to be made by governor with the advice and consent of the council.
No express provision for removals. By early practice, the council
was associated with the governor in removals. The Constitutional
Amendment of 1855 altering the manner of appointment left the
practice as to removals unchanged. Opinion of the Justices, 3 Gray
601, 605. New Hampshire: Constitution of 1784. Provision and
practice the same as Massachusetts. By Laws of 1850, c. 189, § 4,
the legislature further limited the governor's power of removal
over certain inferior offices. New Jersey: Constitution of 1776.
The "supreme executive power" of the governor was limited to
commissioning officers appointed by the council and assembly.
Pennsylvania: Constitution of 1790. Appointing power vested in the
governor alone. In the absence of restrictive legislation, he
exercised the power of removal. Biddle, Autobiography, 283. Control
by the legislature of his power of removal from inferior offices
had early judicial sanction. Commonwealth v. Sutherland, 3
Serg. & R. 145. Maryland: The governor seems to have had such
power under the constitution of 1776, but it was later taken away.
The Constitutional Convention of 1851 considered but refused to
grant the governor the sole power of removal. Cull v.
Wheltle, 114 Md. 58, 80. Illinois: Constitution of 1818 was
construed as denying the power of removal to the governor acting
alone. Field v. People, 2 Scam. 79. The Constitution of
1870, Art. 5, § 12, conferred the power, but only for certain
specified causes. In Maine and Florida, concurrent action of the
senate is a constitutional requirement. Opinion of the Justices, 72
Me. 542; Advisor Opinion to the Governor, 69 Fla. 508.

															[ Footnote 2/10 ]

															The Pennsylvania Constitution of 1873 provided that "appointed
officers . . . may be removed at the pleasure of the power by which
they shall have been appointed." Art. VI, § 4. The Supreme Court
held as to petty officers or subordinate ministerial agents
appointed by the governor, that his power of removal is
controllable, and that a statute prohibiting removal except for
specified causes is valid. Commonwealth v. Black, 201
Pa.St. 433. Officials deemed agents of the legislature are also
held to be without the scope of the governor's power of removal. Commonwealth v. Benn, 284 Pa.St. 421.

															[ Footnote 2/11 ]

															Oregon has, by statute, conferred a general power of removal
upon the governor. 1920 Olson's Oregon Laws, § 4043. Vermont had
also vested the power of removal with the governor. 1917
Vt.Gen.Laws, § 356. It later, however, placed restrictions upon the
governor's power of removing members of the State Board of
Education. 1917 Vt.Gen.Laws, § 1170. See Wyoming Act of
Feb. 20, 1905, c. 59, State v. Grant, 14 Wyo. 41, 59-60. Compare State v. Peterson, 50 Minn. 239; State v.
Hawkins, 44 Ohio St. 98.

															[ Footnote 2/12 ]

															By statute, in some States, removals can be made only upon
concurrence of the senate or legislature with the governor. 1914
Ga.Civ.Code, § 2618; 1924 Ia.Code, § 315; N.Y.Consol.Laws, c. 47, §
3?; 1921 Throckmorton Ohio Gen.Code, § 13; 1913 Pa.Laws, 1374,
1401; 1923 R.I. Gen Laws, § 384; 1924 Va.Code, § 330. In some, the
governor is required merely to record his reasons for dismissal.
Conn.Rev.Stats. § 86; 1905 Wyo.Laws, c. 59. In many States, the
power of removal is limited by statute to specific instances of
misconduct or misbehavior in office. 1921 Colo.Comp.Laws, § 138;
Carroll's Ky.Stats. § 3750; 1915 Mich.Comp.Laws, §§ 243, 252
(during recess of legislature only); 1913 N.D.Comp.Laws, § 685;
1910 Okla.Rev.Stats. § 8052; 1919 S.D.Rev.Code, §§ 7009, 7010; 1917
Utah Comp.Laws, § 5684 (during recess of legislature only); 1893
Wash.Laws, c. 101. In addition, a statement of record of the
reasons for dismissal is often required. 1913 Ariz.Civ.Code, § 247
(inspector of apiaries), § 4757 (board of dental examiners), § 4769
(board of embalmers); 1914 Ga.Code, § 1697(b) (board of medical
examiners), § 1963 (state geologist); 1919 Ida.Comp.Stats. § 793
(board of education), § 2398 (utility commissioners); 1855 La.Acts,
No. 297, § 13 (public weighers); 1910 Md.Laws, c. 180, § 2 (utility
commissioners); 1923 Minn.Gen.Stats. § 2229 (tax officers), § 2356
(tax commission); 1912 Nev.Rev.Laws, § 4432 (dental examiners);
1910 N.Y.Laws, c. 480, § 4 (Public Service Commission); 1921
N.Y.Laws, c. 134 (transit commission); 1921 Throckmorton Ohio
Gen.Laws, § 88 (board of clemency), § 488 (utility commissioners),
486-3 (civil service commissioners), § 710-6 (superintendent of
banks), § 744-16 (commissioner of securities), § 871-2 (industrial
commission), § 1337 (board of embalming examiners), § 1465-2 (tax
commission); 1917 Vt.Gen.Laws, § 1170 (board of education). In
other States, or for other officers, the laws require the existence
of "cause" or provide for notice and hearing. 1919 Mo.Rev.Stat. §
10414 (utility commissioners); 1921 Mont.Pol.Code, § 2820
(industrial accident commission); N.Y.Consol.Laws, c. 46, § 33
(officials appointed by governor alone); 1921 Throckmorton Ohio
Gen.Laws, § 1236-4 (board of health), § 1380 (commissioners of
state laws); 1920 Tex. Comp.Stats. Art. 4995b (board of water
engineers), Art. 6027 (appointees of governor), Art. 6195 (board of
prison commissioners), Art. 6286 (board of pharmacy); 1923
Wis.Stats. § 17.07 (appointees of governor). Some statutes make
removal dependent upon the recommendation of a board. 1920 Tex.
Comp.Stats. Art. 5927 (mining inspectors).

															[ Footnote 2/13 ]

															Removals made from 1789 to 1829 of Presidential appointees,
exclusive of military officers, were as follows: Washington -- 17,
Adams -- 19, Jefferson -- 62, Madison -- 24, Monroe -- 27, J. Q.
Adams -- 7, being a total of 156. Fish, Removal of Officials, 1899
Am.Hist.Ass'n Rep. 67. Compare Sen.Rep. No. 576, 47th
Cong., 1st sess., Ser. No. 2006, p. iv.

															"It was the intention of the founders of our Government that
administrative officers should hold office during good behavior. .
. . Madison, the expounder of the Constitution, said that the
wanton removal of a meritorious officer was an impeachable offense.
It was the established usage without question or variation during
the first forty years of our Government to permit executive
officers, except members of the Cabinet, to hold office during good
behavior, and this practice was only changed by the four-year
tenure act of 1820, which was passed at the instance of an
appointing officer for the purpose of using this power to secure
his nomination as a Presidential candidate."

															Report of U.S. Civil Service Commission for 1896, pp. 28-29.

															[ Footnote 2/14 ]

															Fish, Civil Service and Patronage, 66-70. Madison, in commenting
upon the Four Year Limitation Act of 1820 to President Monroe,
recognized the necessary identity of a power to prescribe
qualifications of tenure and a power to remove from office.

															"Is not the law vacating periodically the described offices an
encroachment on the Constitutional attributes of the Executive? . .
. If a law can displace an officer at every period of four years,
it can do so at the end of every year, or at every session of the
Senate, and the tenure will then be the pleasure of the Senate as
much as of the President, and not of the President alone."

															3 Letters and Writings, 200.

															[ Footnote 2/15 ]

															The provisions of the Acts of 1789, 1791, 1792, 1836 and 1854,
were reenacted in the Revised Statutes, and are still in force.
Rev.Stats. §§ 243, 244, 2242, 3947 as amended. Mandatory directions
of dismissal for specified offenses are also contained in the Act
of Mar. 2, 1867, c. 172, § 3, 14 Stat. 489, 492, reenacted in
Rev.Stats. § 1546; Act of Feb. 1, 1870, c. 11, 16 Stat. 63,
reenacted in Rev.Stats. § 1784 and Act of Aug. 15, 1876, c. 287, §
6, 19 Stat. 143, 169. From the operation of the latter Act
executive officers and employees appointed by the President by and
with the advice and consent of the Senate are significantly
excepted.

															[ Footnote 2/16 ]

															Removals made from 1829 to 1869 of Presidential appointees,
exclusive of military officers, were as follows: Jackson -- 180,
Van Buren -- 43, Harrison and Tyler -- 389, Polk -- 228, Taylor --
491, Fillmore -- 73, Pierce -- 771, Buchanan -- 253, Lincoln --
1400, Johnson -- 726, being a total of 4,554. Fish, Removal of
Officials, 1899 Am.Hist.Ass'n Rep. 67. The great increase in
removals under President Jackson included offices besides those to
which appointments were made by the President and Senate, the
accepted estimate during the first year of his administration being
2,000. 2 Story, Constitution, § 1543; House Rep, No 47, 40th Cong.,
2d sess., Ser. No. 1352, p. 8. Of these, 491 were postmasters. 1
Am.State Papers, Post Office, 242. The increase in the number of
such removals is testified to by the incomplete reports of the
following years. The Post Office Department consistently suffered
most. See Lucy Salmond, History of the Appointing Power, 1
Am.Hist.Ass'n Papers, No. 5, pp. 67-86.

															[ Footnote 2/17 ]

															It was amended by Act of April 5, 1869, c. 10, 16 Stat. 6.

															[ Footnote 2/18 ]

															On Feb. 8, 1887, while the bill for the repeal of the Tenure of
Office Act was pending, the Committee on Post Offices and Post
Roads reported a bill, H.R. 11108, for reclassifying postmasters
into three classes, and provided (§ 1) that:

															"Postmasters of the first and second classes shall be appointed
by the President, by and with the advice and consent of the Senate,
for a term of four years, subject to the provisions of law
respecting their removal or suspension, and the filling of
vacancies occurring when the Senate shall not be in session. . . .
Postmasters of the third class shall be appointed and commissioned
by the Postmaster General, and hold their offices during his
pleasure."

															18 Cong.Rec. 1498. The bill was not considered by Congress.

															On Jan. 5, 1892, Sherman Hoar introduced a bill (H.R.196) to
provide that all postmasters should hold office during good
behavior 23 Cong.Rec. 130. § 1 contained the following proviso:
"Provided, however, That the President may at any time remove or
suspend a postmaster for cause stated." On Dec. 22, 1895, De Forest
introduced H.R. 8328, 27 Cong.Rec. 576. Section 2 provided:

															"That postmasters of all classes now in office or hereafter to
be appointed shall be appointed to hold their offices for good
behavior; Provided, That the President may at any time remove or
suspend a postmaster of the first, second or third class for cause,
communicated in writing to the Senate at the next subsequent
session of Congress after such removal, and that the Postmaster
General may at any time remove or suspend a postmaster of the
fourth class for cause, communicated in the letter of removal."

															Sec. 3 forbade appointment, removal or suspension for political
reasons. On Jan. 28, 1896, Gillett introduced the identical bill
(H.R. 8328). 28 Cong.Rec. 1061. None of these three bills was
considered even by a committee.

															[ Footnote 2/19 ]

															This provision was reenacted by Rev.Stats. § 1229. Comp.Sen.Rep.
Apr. 4, 1864, No. 42, 38th Cong. 1st sess., Ser. No. 1178. In Blake v. United States, 103 U. S. 227 , 103 U. S. 237 ,
this provision was interpreted as not denying "the power of the
President, by and with the advice and consent of the Senate, to
displace them by the appointment of others in their places." The
Act of June 4, 1920, c. 227, Art. 118, 41 Stat. 759, 811,
provides:

															"ART. 118. OFFICERS, SEPARATION FROM SERVICE. -- No officer
shall be discharged or dismissed from the service, except by order
of the President or by sentence of a general court-martial, and in
time of peace no officer shall be dismissed except in pursuance of
the sentence of a general court-martial or in mitigation thereof;
but the President may at any time drop from the rolls of the Army
any officer who has been absent from duty three months without
leave or who has been absent in confinement in a prison or
penitentiary for three months after final conviction by a court of
competent jurisdiction."

															[ Footnote 2/20 ] See 272 U.S.
52 fn2/4|>Note 4, p. 242, supra. [ Footnote 2/21 ] See Lawrence, June 17, 1 Ann.Cong. 483-484; Smith, June
17, 1 Ann.Cong. 508-9; Madison, June 18, 1 Ann.Cong., 547-548. A
few days subsequent to the debate on the removal provision in the
Act establishing a Department of Foreign Affairs, Madison, although
he believed that the power to prescribe the tenure of office and
the power of removal were, in essence, the same, moved to amend the
Act establishing a Treasury Department by providing that the
Comptroller should hold office for a limited period of years. To
the objection that such a provision was not within the power of
Congress he replied:

															"When I was up before . . . , I endeavored to show that the
nature of this office differed from the others upon which the House
had decided; and, consequently, that a modification might take
place, without interfering with the former distinction; so that it
cannot be said we depart from the spirit of the Constitution."

															1 Ann.Cong. 614. Stone, in support of Madison, added:

															"As the Comptroller was an inferior officer, his appointment
might be vested in the President by the Legislature; but, according
to the determination which had already taken place, it did not
necessarily follow that he should have the power of dismissal, and
before it was given, its propriety ought to be apparent."

															1 Ann.Cong. 613. See 272 U.S.
52 fn2/71|>Note 71, infra. [ Footnote 2/22 ]

															In 1830, Senator Barton, in defense of his resolutions denying
an uncontrollable Presidential power of removal, said:

															"It is no question whether a President may remove, at his own
will and pleasure, his Secretary of State. That was the very
question before Congress in the great debate of 1789. . . . Nobody
would wish to force a disagreeable member of the cabinet on the
President. . . . But the class of officers now before the Senate,
and their predecessors, attempted to be removed by the President,
were not under consideration in the debate of 1789. This is a class
of public officers -- or officers of the law -- whose term, tenure,
and duties of office are fixed and prescribed by the laws of the
land, and not by the Executive will, as in the other class. . . .
The power is now boldly asserted on this floor by the majority, for
the first time since the foundation of the republic, of removing
this class of federal officers by the President at discretion,
without the slightest restraint by the Senate."

															6 Cong. Deb. 458-459. The same distinction was taken in 1835, by
Senators Wright and White, in the debate on the Executive Patronage
Bill. 11 Cong.Deb. 480, 487.

															On June 15, 1844, the Senate Committee on Retrenchment dealing
with the evils of executive patronage said:

															"It will be sufficient for the committee to show that Congress
may regulate, by law, as well the power to appoint inferior
officers as to remove them. . . . The committee will not protract
the argument. It is not known to them that the power of Congress to
regulate the appointment and removal of inferior officers has been
questioned. It is very certain that the authority of the President
to control the departments in the exercise of the power has not at
any time been recognised by law."

															Sen.Doc. No. 399, 28th Cong. 1st sess., Ser. No. 437, p.
29-30.

															[ Footnote 2/23 ]

															In six instances, President Johnson, in separate messages,
communicated his reasons for suspension. 16 Ex.Journ. 3, 109-110,
122, 133. In two further instances, misconduct was given as the
ground for suspension. 16 ibid. 1.

															[ Footnote 2/24 ]

															Five cases of this nature are on record. 16 Ex.Journ.
411-412.

															[ Footnote 2/25 ]

															From President Grant's administration to the close of the first
two years of President Cleveland's first administration,
nominations of officials to succeed those who had been suspended
during the recess follow one of two forms: "I nominate A.B., who
was designated during the recess of the Senate, to be ___, vice
C.D. suspended," or "I nominate A.B. to be postmaster at ___ in
place of C.D., suspended under the provisions of the seventeen
hundred and sixty-eighth section of the Revised Statutes of the
United States." These forms are not used after Mar. 3, 1887. The
case of A.C. Botkin, marshal of Montana Territory, is illustrative
of the fact that suspension, and not removal, could be effected
during the recess. On Jan. 28, 1885, President Arthur nominated E.
A. Kreidler in place of A.C. Botkin to be removed. 24 Ex.Journ.
425. The Senate failed to act upon the nomination, and, on Dec. 21,
1885, President Cleveland nominated R.S. Kelly vice A.C. Botkin
suspended. For several months, action upon the nomination was
delayed, and, on April 28, 1886, the President sent the following
message to the Senate:

															"I nominated Robert S. Kelly, of Montana, to the Senate on the
21st day of December, 1885, . . . in the place of A.C. Botkin, who
was by me suspended under the provisions of section 1708 of the
Revised Statutes. On the 12th day of April, 1886, the term of
office for which said A.C. Botkin was originally appointed expired.
And I renew the nomination of Robert S. Kelly, of Montana, . . . in
the place of the said A.C. Botkin, whose term of office has so
expired as aforesaid."

															25 Ex.Journ. 441. These years of President Cleveland disclose 78
other cases of a similar nature. 25 ibid. 396-410, 426,
436, 441, 488, 490-494, 497, 501, 516, 539, 563, 714-715.

															[ Footnote 2/26 ]

															On Dec. 6, 1869, President Grant requested the consent of the
Senate to the removal of certain Indian agents, to whose posts army
officers had been assigned. 17 Ex.Journ. 289. On May 17, 1872, the
Senate gave its consent to the removal of T. H. Bazin, appraiser of
merchandise at Charleston, S.C., 18 ibid. 251. On Dec. 4,
1878, President Hayes requested the Senate's consent to the removal
of A.M. Devereux, a third lieutenant in the revenue service. 21 ibid. 393. The Senate during that session took no action.
To the three succeeding sessions of the Senate, the same request
was made without securing its consent. 22 ibid. 23, 108,
410. President Garfield likewise made the same request, but failed
to secure any action by the Senate. 23 ibid. 9, 29. On
April 15, 1884, President Arthur recommended to the Senate the
removal of F. N. Wicker as collector of customs at Key West. 24 ibid. 246. The Senate concurred in his removal without
expressing an opinion upon the constitutional powers of the
President and Senate upon the subject of removal. 24 ibid. 249.

															[ Footnote 2/27 ]

															The instances are numerous, and a few illustrations will
suffice. On Mar. 2, 1883, Paul Strobach was nominated as a marshal
vice M.C. Osborn to be removed. 23 Ex.Journ. 711. The Senate took
no action during that session, and, in the recess, Osborn was
suspended. Strobach was again nominated, but was rejected at the
next session of the Senate. Thereupon, on May 8, 1884, J. H. Speed
was nominated "vice Paul Strobach, temporarily appointed during the
recess of the Senate." 24 Ex.Journ. 265. Pending action upon the
nomination, President Arthur, on May 14, 1884, again nominated J.
H. Speed

															"vice M.C. Osborn, whose term has expired. This nomination is
made to correct an error in the nomination of Joseph H. Speed to
the above-named office, which was delivered to the Senate on the
8th instant, and which is hereby withdrawn."

															24 Ex.Journ. 267. The correction expressly recognizes that
Osborn had never ceased to hold office. Compare 15 Op.A.G.
375. Again, on Mar. 2, 1884, Windus was nominated as a postmaster
vice Lambert "whose removal for cause is hereby proposed." 24
Ex.Journ. 220. The Senate rejected Windus, and, on Dec. 17, 1885,
President Cleveland nominated Gildea vice Lambert, "whose
commission expired May 13, 1885." 25 ibid. 228. On Jan. 6,
1885, Richardson was nominated as a postmaster vice Corson "whose
removal for cause is hereby proposed." 24 ibid. 412. The
Senate failed to act upon the nomination, and, on April 1, 1885,
Cleveland nominated Bonner to the post vice Corson "whose removal
for cause is hereby proposed." 25 ibid. 45.

															[ Footnote 2/28 ]

															Since the enactment of the Tenure of Office Act, various forms
have been used to nominate officials to succeed those whose removal
is thereby sought. Examination of their use over a period of
thirty-two years indicates that no significance is to be attached
to the use of any particular form. Thus, the nomination is
sometimes in the form A. B. vice C. D. "removed"; sometimes it is
"to be removed"; sometimes "removed for cause "; sometimes "whose
removal for cause is hereby proposed."

															"whose

															"removed removal for

															"re- "to be for cause is here

															moved" removed" cause" by proposed"

															1867-1869 (Johnson). . . . . 37 72 3

															1869-1873 (Grant). . . . . . 468 464 17

															1873-1877 (Grant). . . . . . 120 144 19

															1877-1881 (Hayes). . . . . . 8 102 10 42

															1881 (Garfield). . . . . . . 1 19

															1881-1885 (Arthur) . . . . . 4 78 69

															1885-1887 (Cleveland). . . . 15 19 24

															1887-1889 (Cleveland). . . . 178 1

															1889-1893 (Harrison) . . . . 1080 118 9

															1893-1897 (Cleveland). . . . 808 101

															1897-1899 (McKinley) . . . . 813 26

															Postmasters will be found included within all these categories.
16-31 Ex.Journ., passim. The form "who has been removed"
was twice used by President Grant and once by President Harrison.
On one occasion, President Grant used the form "whom I desire to
remove," and on six occasions President Hayes used the form "to be
thus removed." The simple form "removed," which has been
exclusively used for postmasters since 1887, does not imply that
removal has already been accomplished. That form was used in the Parsons and Shurtleff cases, where the
notification of removal sent to the incumbent stated that the
removal would take effect upon the qualification of a successor. 29
Ex.Journ. 11; 31 ibid. 1328.

															[ Footnote 2/29 ]

															Cases in this Court dealing with the removal of civil officers
appointed by the President with the advice and consent of the
Senate illustrate the practice of securing their removal by the
appointment of a successor. In recent years, the formal
notification of removal commonly reads: "Sir: You are hereby
removed from the office of ___, to take effect upon the appointment
and qualification of your successor." Parsons v. United
States, 167 U. S. 324 , 167 U. S. 325 ; Shurtleff v. United States, 189 U.
S. 311 , 189 U. S.
312 .

															[ Footnote 2/30 ]

															Provisions authorizing removal for

															(a) Inefficiency, neglect of duty, malfeasance in office, but
for no other cause: Act of May 27, 1908, c. 205, § 3, 35 Stat. 403,
406, amending Act of June 10, 1890, c. 407, § 12, 26 Stat. 131,
136, Board of General Appraisers; Act of July 15, 1913, c. 6, § 11,
38 Stat. 103, 108, Commissioner of Mediation and Conciliation
(misconduct in office only); Act of June 2, 1924, c. 234, § 900b,
43 Stat. 253, 336, Board of Tax Appeals.

															(b) Neglect of duty or malfeasance in office, but for no other
cause: Act of Feb. 28, 1920, c. 91, § 306(b), 41 Stat. 456, 470,
Railroad Labor Board; Act of Sept. 22, 1922, c. 412, § 1, 42 Stat.
1023, amended by Act of Mar. 4, 1923, c. 248, § 1, 42 Stat. 1446,
United States Coal Commission.

															(c) Inefficiency, neglect of duty, malfeasance in office, not
restricting, however, under Shurtleff v. United States, 189 U. S. 311 , the
President's power to remove for other than the causes specified:
Act of Feb. 4, 1887, c. 104, § 11, 24 Stat. 379, 383, Interstate
Commerce Commission; Act of June 10, 1890, c. 407, § 12, 26 Stat.
131, 136, Board of General Appraisers; Act of Sept. 26, 1914, c.
311, 1, 38 Stat. 717, 718, Federal Trade Commission; Act of Sept.
7, 1916, c. 451, § 3, 39 Stat. 728, 729, United States Shipping
Board; Act of Sept. 8, 1916, c. 473, § 700, 39 Stat. 756, 795,
United States Tariff Commission.

															[ Footnote 2/31 ]

															Act of June 7, 1878, c. 162, § 1, 20 Stat. 100, justices of the
peace of the District of Columbia; Act of June 6, 1900, c. 786, §
10, 31 Stat. 321, 325, governor, surveyor-general, attorneys,
marshals of Alaska; Act of Aug. 24, 1912, c. 389, § 6, 37 Stat.
539, 555, removals from the classified civil service to be only for
such cause as will promote the efficiency of the service and for
reasons stated in writing; Act of July 17, 1916, c. 245, § 3, 39
Stat. 360, Federal Farm Loan Board; Act of June 3, 1922, c. 205, 42
Stat. 620, Federal Reserve Board. The provision is also common with
respect to judgeships. Act of Mar.19, 1906, c. 960, § 1, 34 Stat.
73 (Juvenile Court of the District of Columbia); Act of June 30,
1906, c. 3934, § 7, 34 Stat. 814, 816 (United States Court for
China); Act of Mar. 3, 1925, c. 443, § 3a, 43 Stat. 1119 (Police
Court of the District of Columbia).

															[ Footnote 2/32 ]

															Act of May 27, 1908, c. 205, § 3, 35 Stat. 403, 406, does so in
express terms. Shurtleff v. United States, 189 U.
S. 311 , 189 U. S. 314 , 189 U. S. 317 ,
declares that, by construction, every Act which prescribes specific
causes for removal requires that removal be not made for such cause
without a hearing. In Reagan v. United States, 182 U. S. 419 , 182 U. S. 425 ,
it was said:

															"The inquiry is therefore whether there were any causes of
removal prescribed by law, March 1, 1895, or at the time of the
removal. If there were, then the rule would apply that, where
causes of removal are specified by constitution or statute, as also
where 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."

															State courts have held that statutes providing for removal "for
cause" require that the appointee be given notice and an
opportunity to defend himself. State v. Frazier, 47 N.D.
314; Street Commissioners v. Williams, 96 Md. 232; Ham
v. Board of Police, 142 Mass. 90; Haight v. Love, 39
N.J.L. 14, aff'd. 39 N.J.L. 476; Biggs v.
McBride, 17 Oreg. 640.

															[ Footnote 2/33 ]

															Act of June 3, 1864, c. 106, § 1, 13 Stat. 99, Comptroller of
the Currency; Act of Feb. 12, 1873, c. 131, § 1, 17 Stat. 424,
Director of the Mint.

															[ Footnote 2/34 ]

															The executive orders of Jan. 31, 1902, and Jan. 25, 1906,
prescribed dismissal as a penalty for agitation by civil employees
for an increase in wages. The executive orders of Nov. 26, 1909,
and April 8, 1912, forbade communications to members of Congress
save through heads of departments. Report of U.S. Civil Service
Commission, for 1912, pp. 23-24. Section 6 of the Act of 1912 was
intended to override these orders. See 48 Cong.Rec.
5634-5636. On Feb.19, 1886, the National Civil Service Reform
League, in a series of resolutions, recommended that the reasons
for removal be treated as "part of the public record." 5 Civ.Serv.
Rec. 92. On Aug. 9, 1890, Commissioner Roosevelt advocated such a
restriction upon removals. 10 Civ.Serv.Rec. 26. A bill reported
from the Select Committee of the House on Civil Service Reform in
1891 contained such a provision. House Rep. No. 4038, 51 Cong., 2d
sess., Ser. No. 2890. The Attorney General, in 1913, ruled, against
an earlier opinion of the Civil Service Commission, that
Presidential appointees were excluded from the terms of the Act of
1912. 30 Op.A.G. 181. The Civil Service Act of Jan. 16, 1883, c.
27, § 2, 22 Stat. 403, 404, which was approved by President Arthur,
had also provided that failure to subscribe to political funds
should not be a ground of dismissal.

															[ Footnote 2/35 ]

															Citizens of

															(a) The United States: Act of May 3, 1802, c. 53, § 5, 2 Stat.
195, 196, mayor of the District of Columbia; Act of Mar. 1, 1855,
c. 133, § 9, 10 Stat. 619, 623, ministers and their subordinates;
Act of Aug. 18, 1856, c. 127, § 7, 11 Stat. 52, 55, consular
pupils; Act of June 20, 1864, c. 136, § 2, 13 Stat. 137, 139,
consular clerks; Act of Mar. 22, 1902, c. 272, 32 Stat. 76, 78, Act
of Feb. 9, 1903, c. 530, 32 Stat. 807, 809, Act of Mar. 12, 1904,
c. 543, 33 Stat. 67, 69, Act of Mar. 3, 1905, c. 1407, 33 Stat.
915, 917, Act of June 16, 1906, c. 3337, 34 Stat. 286, 288, Act of
Feb. 22, 1907, c. 1184, 34 Stat. 916, 918, Act of May 21, 1908, c.
183, 35 Stat. 171, 172, Act of Mar. 2, 1909, c. 235, 35 Stat. 672,
674, Act of May 6, 1910, c. 199, 36 Stat. 337, 339, Act of Mar. 3,
1911, c. 208, 36 Stat. 1027, 1029, Act of April 30, 1912, c. 97, 37
Stat. 94, 96, Act of Feb. 28, 1913, c. 86, 37 Stat. 688, 689, Act
of June 30, 1914, c. 132, 38 Stat. 442, 444, Act of Mar. 4, 1915,
c. 145, 38 Stat. 1116, 1117, Act of July 1, 1916, c. 208, 39 Stat.
252, 253, Act of Mar. 3, 1917, c. 161, 39 Stat. 1047, 1049, Act of
April 15, 1918, c. 52, 40 Stat. 519, 520, Act of Mar. 4, 1919, c.
123, 40 Stat. 1325, 1327, Act of June 4, 1920, c. 223, 41 Stat.
739, 741, Act of Mar. 2, 1921, c. 113, 41 Stat. 1205, 1207, Act of
June 1, 1922, c. 204, 42 Stat. 599, 601, Act of Jan. 3, 1923, c.
21, 42 Stat. 1068, 1070, student interpreters for China, Japan and
Turkey; Act of April 5, 1906, c. 1366, § 5, 34 Stat. 99, 101,
clerks in consular office receiving more than $1,000 per annum; Act
of July 17, 1916, c. 245, § 3, 39 Stat. 360, Federal Farm Loan
Board; Act of Feb. 23, 1917, c. 114, § 6, 39 Stat. 929, 932,
Federal Board for Vocational Education; Act of May 24, 1924, c.
182, § 5, 43 Stat. 140, 141, Foreign Service officers; Act of June
7, 1924, c. 287, § 7, 43 Stat. 473, 474, board of advisors to the
Federal Industrial Institution for Women.

															(b) A State: Act of Mar. 3, 1891, c. 539, § 2, 26 Stat. 854,
855, attorney and interpreter for the Court of Private Land
Claims.

															(c) A Particular State: Act of July 27, 1854, c. 110, § 1, 10
Stat. 313, commissioner to adjust Indiana land claims; Act of Mar.
l, 1907, c. 2285, 34 Stat. 1015, 1036, Act of May 30, 1910, c. 260,
§ 4, 36 Stat. 448, 450, Act of June 1, 1910, c. 264, § 7, 36 Stat.
455, 457, Act of Aug. 3, 1914, c. 224, § 3, 38 Stat. 681, 682,
various commissions to appraise unallotted Indian lands.

															(d) A Particular Territory: Act of April 12, 1900, c.191, § 40,
31 Stat. 77, 86, commission to revise the laws of Porto Rico; Act
of April 30, 1900, c. 339, §§ 66, 69, 31 Stat. 141, 153, 154,
governor and secretary of Hawaii; Act of July 9, 1921, c. 42, §§
303, 313, 42 Stat. 108, 116, 119, governor, attorney and marshal of
Hawaii.

															(e) District of Columbia: Act of Mar. 3, 1855, c.199, § 2, 10
Stat. 682, board of visitors for Government Hospital for the
Insane; Act of Feb. 21, 1871, c. 62, § 37, 16 Stat. 419, 426, Board
of Public Works; Act of June 11, 1878, c. 180, § 2, 20 Stat. 102,
103, commissioners of the District; Act of Sept. 27, 1890, c. 1001,
§ 2, 26 Stat. 492, Rock Creek Park Commission.

															[ Footnote 2/36 ]

															Act of Mar. 1, 1855, c. 133, § 9, 10 Stat. 619, 623, ministers
and their subordinates.

															[ Footnote 2/37 ]

															Act of Mar. 3, 1891, c. 539, § 2, 26 Stat. 854, 855, attorney
and interpreter for the Court of Private Land Claims.

															[ Footnote 2/38 ]

															Act of Mar. 29, 1867, c. 14, § 1, 15 Stat. 9, commissioners to
ascertain the amount raised in Indiana in enrolling the militia;
Act of Mar. 1, 1907, c. 2285, 34 Stat. 1015, 1036, Act of May 30,
1910, c. 260, § 4, 36 Stat. 448, 450, Act of June 1, 1910, c. 264,
§ 7, 36 Stat. 455, 457, Act of Aug. 3, 1914, c. 224 § 3, 38 Stat.
681, 682, various commissions for the appraisal of unallotted
Indian lands.

															[ Footnote 2/39 ]

															Act of July 1, 1862, c. 119, § 2, 12 Stat. 432, 433, assessors
and collectors of internal revenue, and semble, Act of
July 2, 1836, c. 270, § 36, 5 Stat. 80, 88, postmasters.

															[ Footnote 2/40 ]

															Act of Mar. 26, 1804, c. 38, § 4, 2 Stat. 283, 284, legislative
council of Louisiana; Act of Mar. 3, 1891, c. 564, § 2, 26 Stat.
1104, territorial mine inspectors; Act of July 9, 1921, c. 42, §§
303, 313, 42 Stat. 108, 116, 119, governor, attorney and marshal of
Hawaii.

															[ Footnote 2/41 ]

															Act of May 3, 1802, c. 53, § 5, 2 Stat. 195, 196, mayor of the
District of Columbia; Act of April 16, 1862, c. 54, § 3, 12 Stat.
376, commissioners for claims arising from the abolition of
slavery; Act of Feb. 21, 1874, c. 62, § 37, 16 Stat. 419, 426,
Board of Public Works; Act of June 7, 1878, c. 162, § 5, 20 Stat.
100, 101, notaries public; Act of June 11, 1878, c. 180, § 2, 20
Stat. 102, 103, commissioners of the District.

															[ Footnote 2/42 ]

															Act of Mar. 3, 1819, c. 101, § 2, 3 Stat. 532, 533, agents on
the coast of Africa to receive negroes from vessels seized in the
slave trade.

															[ Footnote 2/43 ]

															Professional qualifications:

															(a) Learning in the Law: Act of Sept. 24, 1789, c. 20, § 35, 1
Stat. 73, 92, Attorney General and district attorneys; Act of Mar.
26, 1804, c. 38, § 8, 2 Stat. 283, 286, attorney for Louisiana
Territory; Act of April 3, 1818, c. 29, § 4, 3 Stat. 413, attorney
for Mississippi; Act of Mar. 3, 1819, c. 70, § 4, 3 Stat. 502, 503,
attorney for Illinois; Act of April 21, 1820, c. 47 § 6, 3 Stat.
564, 565, attorney for Alabama; Act of Mar. 16, 1822, c. 12, § 4, 3
Stat. 653, attorney for Missouri; Act of Mar. 30, 1822, c. 13, § 7,
3 Stat. 654, 656, attorney for Florida Territory; Act of Mar. 3,
1823, c. 28, § 9, 3 Stat. 750, 752, attorney for Florida Territory;
Act of May 26, 1824, c. 163, § 3, 4 Stat. 45, 46, attorney for
Florida Territory; Act of May 29, 1830, c. 153, § 1, 4 Stat. 414,
solicitor of the Treasury; Act of June 15, 1836, c. 100, § 6, 5
Stat. 50, 51, attorney for Arkansas; Act of July 1, 1836, c. 234, §
4, 5 Stat. 61, 62, attorney for Michigan; Act of Mar. 3, 1845, c.
75, § 7, 5 Stat. 788, attorney for Florida; Act of Mar. 3, 1845, c.
76, § 4, 5 Stat. 789, attorney for Iowa; Act of Dec. 29, 1845, c.
1, § 3, 9 Stat. 1, attorney for Texas; Act of Aug. 6, 1846, c. 89,
§ 5, 9 Stat. 56, 57, attorney for Wisconsin; Act of Feb. 23, 1847,
c. 20, § 5, 9 Stat. 131, attorney for Florida; Act of Sept. 28,
1850, c. 86, § 8, 9 Stat. 521, 522, attorney for California; Act of
Mar. 3, 1851, c. 41, § 4, 9 Stat. 631, agent for California Land
Commission; Act of Aug. 31, 1852, c. 108, § 12, 10 Stat. 76, 99,
law agent for California; Act of July 27, 1854, c. 110, § 1, 10
Stat. 313, commissioner to adjust land claims; Act of Mar. 4, 1855,
c. 174, § 1, 10 Stat. 642, commissioners to revise District of
Columbia laws; Act of Mar. 3, 1859, c. 80, 11 Stat. 410, 420,
Assistant Attorney General; Act of Mar. 2, 1861, c. 88, § 2, 12
Stat. 246, examiners in chief in Patent Office; Act of May 20,
1862, c. 79, § 1, 12 Stat. 403, commissioners to revise District of
Columbia laws; Act of Mar. 3, 1863, c. 91, § 17, 12 Stat. 762, 765,
commissioners to revise District of Columbia laws; Act of Mar. 3,
1863, c. 101, § 2, 12 Stat. 795, solicitor to Peruvian
Commissioners; Act of June 27, 1866, c. 140, § 1, 14 Stat. 74,
commissioners to revise United States laws, Joint Res. of May 27,
1870, No. 66, § 1, 16 Stat. 378, examiner of claims for the
Department of State; Act of June 22, 1870, c. 150, §§ 2, 3, 16
Stat. 162, Solicitor General and Assistant Attorney Generals; Act
of July 8, 1870, c. 230, § 10, 16 Stat. 198, 200, examiners in
chief in Patent Office; Act of Mar. 2, 1877, c. 82, § 1, 19 Stat.
268, commissioner for a new edition of the Revised Statutes; Act of
Mar. 6, 1890, c. 27, § 1, 26 Stat. 17, delegates to the
International Conference at Madrid in patent and trademark laws;
Act of Mar. 3, 1891, c. 539, § 2, 26 Stat. 854, 855, attorney of
the Court of Private Land Claims; Act of Mar. 2, 1901, c. 800, § 1,
31 Stat. 877, Spanish claims commissioners; Act of June 13, 1902,
c. 1079, § 4, 32 Stat. 331, 373, commission on Canadian boundary
waters to include one lawyer experienced in international and
riparian law.

															(b) Versed in Spanish and English Languages: Act of Mar. 3,
1849, c. 107, § 2, 9 Stat. 393, secretary to Mexican Treaty
Commissioners; Act of Mar. 3, 1851, c. 41, § 4, 9 Stat. 631, agent
for California Land Commission; Act of Aug. 31, 1852, c. 108, § 12,
10 Stat. 76, 99, law agent in California; Act of May 16, 1860, c.
48, § 2, 12 Stat. 15, secretary of Paraguay Commission; Act of Feb.
20, 1861, c. 45, § 2, 12 Stat. 145, secretary of New Granada
Commission; Act of Mar. 3, 1863, c. 101, §§ 2, 3, 12 Stat. 795,
solicitor and secretary of Peruvian Commissioners; Joint Res. of
Jan. 12, 1871, No. 7, § 1, 16 Stat. 591, secretary of San Domingo
Commissioners; Act of Mar. 3, 1891, c. 539, § 2, 26 Stat. 854, 855,
interpreter to the Court of Private Land Claims.

															(c) Engineering: Act of Feb. 21, 1871, c. 62, 37, 16 Stat. 19,
426, District of Columbia Board of Public Works: Act of April 4,
1871, c. 9, § 1, 17 Stat. 3, commission to examine Sutro Tunnel;
Act of June 22, 1874, c. 411, § 1, 18 Stat. 199, commission to
examine alluvial basin of Mississippi River; Act of June 28, 1879,
c. 43, § 2, 21 Stat. 3?, Mississippi River Commission; Act of June
4, 1897, c. 2, 30 Stat. 11, 59, Nicaragua Canal Commission; Act of
June 13, 1902, c. 1079, § 4, 32 Stat. 331, 373, commission on
Canadian boundary waters; Act of June 28, 1902, c. 1302, § 7, 32
Stat. 481, 483, Isthmian Canal Commission; Act of Aug. 24, 1912, c.
387, § 18, 37 Stat. 512, 517, Alaskan Railroad Commission; Act of
Aug. 8, 1917, c. 49, § 18, 40 Stat. 250, 269, Inland Waterways
Commission; Act of May 13, 1924, c. 153, 43 Stat. 118, Rio Grande
Commission.

															(d) Miscellaneous: Joint Res. of July 5, 1866, No. 66, § 1, 14
Stat. 362, commissioners to Paris Universal Exhibition to be
professional and scientific men; Act of June 10, 1896, c. 398, 29
Stat. 321, 342, commissioners to locate Indian boundaries to be
surveyors; Act of Aug. 24, 1912, c. 387, § 18, 37 Stat. 512, 517,
Alaskan Railroad Commission to include one geologist in charge of
Alaskan survey.

															[ Footnote 2/44 ]

															Act of Aug. 26, 1852, c. 91, § 2, lo Stat. 30, superintendent of
public printing to be a practical printer; Act of Aug. 31, 1852, c.
112, § 8, 10 Stat. 112, 119, Light House Board to include civilian
of high scientific attainments; Act of July 27, 1866, c. 284, § 1,
14 Stat. 302, appraiser for New York to have had experience as an
appraiser or to be practically acquainted with the quality and
value of some one or more of the chief articles of importation
subject to appraisement; Joint Res. of Feb. 9, 1871, No. 22, § 1,
16 Stat. 593, 594, commissioner for fish and fisheries to be a
person of proved scientific and practical acquaintance with the
fishes of the coast; Act of Feb. 28, 1871, c. 100, § 23, 63, 16
Stat. 440, 448, 458, supervising inspectors of steam vessels to be
selected for their knowledge, skill, and practical experience in
the uses of steam for navigation and to be competent judges of the
character and qualities of steam vessels and of all parts of the
machinery employed in steaming, inspector general to be selected
with reference to his fitness and ability to systematize and carry
into effect all the provisions of law relating to the steamboat
inspection service, Act of June 23, 1874, c. 480, § 2, 18 Stat.
277, 278, inspector of gas in the District of Columbia to be a
chemist, assistant inspector to be a gasfitter by trade; Joint Res.
of Dec. 15, 1877, No. 1, § 2, 20 Stat. 245, commissioners to the
International Industrial Exposition in Paris to include three
practical artisan experts, four practical agriculturists, and nine
scientific experts; Act of June 18, 1878, c. 265, § 6, 20 Stat.
163, 164, superintendent of Life Saving Service to be familiar with
the various means employed in the Life Saving Service for the
saving of life and property from shipwrecked vessels; Act of June
29, 1888, c. 503, § 8, 25 Stat. 217, 238, superintendent of Indian
schools to be a person of knowledge and experience in the
management, training and practical education of children; Act of
July 9, 1888, c. 593, § 1, 25 Stat. 243, delegates to the
International Marine Conference to include two masters of merchant
marine (one sailing and one steam), and two civilians familiar with
shipping and admiralty practice; Act of Mar. 3, 1891, c. 564, § 2,
26 Stat. 1104, mine inspectors in the territories to be practical
miners; Act of July 13, 1892, c. 164, 27 Stat. 120, 139, Indian
commissioners to be familiar with Indian affairs; Act of Jan. 12,
1895, c. 23, § 17, 28 Stat. 601, 603, public printer to be a
practical printer; Act of Mar. 3, 1899, c. 419, § 2, 30 Stat. 1014,
assistant director of the Census to be an experienced practical
statistician; Act of May 16, 1910, c. 240, § 1, 36 Stat. 369,
Director of Bureau of Mines to be equipped by technical education
and experience; Act of Dec. 23, 1913, c. 6, § 10, 38 Stat. 251,
260, Federal Reserve Board to include two members experienced in
banking or finance; Act of Mar. 3, 1919, c. 97, § 3, 40 Stat. 1291,
1292, assistant director of the Census to be an experienced
practical statistician; Act of June 2, 1924, c. 234, § 900b, 43
Stat. 253, 336, Board of Tax Appeals to be selected solely on
grounds of fitness to perform duties of the office.

															[ Footnote 2/45 ]

															Act of Mar. 3, 1853, c. 97, § 3, 10 Stat. 189, 211, examination
required of clerks in the Departments of Treasury, War, Navy,
Interior, and Post Office; Act of June 20, 1864, c. 136, § 2, 13
Stat. 137, 139, examination required of consular clerks; Act of
Jan. 16, 1883, c. 27, § 2, 22 Stat. 403, examinations for civil
service employees; Act of Jan. 4, 1889, c.19, § 1, 25 Stat. 639,
medical officers of Marine Hospital Service; Act of May 22, 1917,
c. 20, § 16, 40 Stat. 84, 88, officers of the Coast and Geodetic
Survey; Act of Oct. 27, 1918, c.196, § 16, 40 Stat. 1017,
examinations for Public Health Service Reserve; Act of May 24,
1924, c. 182, § 5, 43 Stat. 140, 141, examination for appointments
as Foreign Service officers in Diplomatic Corps.

															[ Footnote 2/46 ]

															Act of June 20, 1864, c. 136, § 2, 13 Stat. 137, 139, consular
clerks; Act of April 30, 1900, c. 339, § 66, 31 Stat. 141, 153,
governor of Hawaii; Act of July 9, 1921, c. 42, § 303, 42 Stat.
108, 116, governor of Hawaii.

															[ Footnote 2/47 ]

															Joint Res. of Feb. 23, 1900, No. 9, 31 Stat. 711, one
commissioner to represent the United States at the unveiling of the
statue of Lafayette to be a woman; Act of June 5, 1920, c. 248, §
2, 41 Stat. 987, Director of Women's Bureau to be a woman.

															[ Footnote 2/48 ]

															Act of July 1, 1902, c. 1362, § 59, 32 Stat. 641, 654,
commission to sell coal and asphalt deposits in Indian lands to
include two Indians.

															[ Footnote 2/49 ]

															Act of Mar. 26, 1804, c. 38, § 4, 2 Stat. 283, 284, legislative
council of Louisiana to be selected from those holding real
estate.

															[ Footnote 2/50 ]

															Act of Jan. 16, 1883, c. 27, § 8, 22 Stat. 403, 406, civil
service appointees.

															[ Footnote 2/51 ]

															Act of Mar. 22, 1882, c. 47, § 9, 22 Stat. 30, 32, board of
elections in Utah Territory; Act of Jan. 16, 1883, c. 27, § 1, 22
Stat. 403, Civil Service Commission; Act of Feb. 4, 1887, c. 104, §
11, 24 Stat. 379, 383, amended by Act of June 29, 1906, c. 3591, §
8, 34 Stat. 584, 595, Act of Aug. 9, 1917, c. 50, § 1, 40 Stat.
270, and Act of Feb. 28, 1920, c. 91, § 440, 41 Stat. 456, 497,
Interstate Commerce Commission; Act of June 10, 1890, c. 407, § 12,
26 Stat. 131, 136, Board of General Appraisers; Act of Mar. 2,
1889, c. 412, § 14, 25 Stat. 980, 1005, Act of Aug.19, 1890, c.
807, 26 Stat. 336, 354, Act of July 13, 1892, c. 164, 27 Stat. 120,
138, 139, Act of June 10, 1896, c. 398, 29 Stat. 321, 342, various
commissions to negotiate Indian treaties; Act of Sept. 26, 1914, c.
311, § 1, 38 Stat. 717, Federal Trade Commission; Act of July 17,
1916, c. 245, § 3, 39 Stat. 360, Federal Farm Loan Board; Act of
Sept. 7, 1916, c. 451, § 3, 39 Stat. 728, 729, amended by Act of
June 5, 1920, c. 250, § 3a, 41 Stat. 988, 989, United States
Shipping Board; Act of Sept. 7, 1916, c. 458, § 28, 39 Stat. 742,
748, United States Employees' Compensation Commission; Act of Sept.
8, 1916, c. 463, § 700, 39 Stat. 756, 795, United States Tariff
Commission; Act of Sept. 21, 1922, c. 356, § 518, 42 Stat. 858,
972, Board of General Appraisers; Act of Feb. 28, 1923, c. 146, §
2, 42 Stat. 1325, 1326, World War Foreign Debt Commission.

															[ Footnote 2/52 ]

															Act of Mar. 3, 1901, c 864, § 2, 31 Stat. 1440, Louisiana
Purchase Exposition commission; Act of Mar. 22, 1902, c. 272, 32
Stat. 76, 78, Act of Feb. 9, 1903, c. 530, 32 Stat. 807, 809, Act
of Mar. 12, 1904, c. 543, 33 Stat. 67, 69, Act of Mar. 3, 1905, c.
1407, 33 Stat. 915, 917, Act of June 16, 1906, c. 3337, 34 Stat.
286, 288, Act of Feb. 22, 1907, c. 1184, 34 Stat. 916, 918, Act of
May 21, 1908, c. 183, 35 Stat. 171, 172, Act of Mar. 2, 1909, c.
235, 35 Stat. 672, 674, Act of May 6, 1910, c. 199, 36 Stat. 337,
339, Act of Mar. 3, 1911, c. 208, 36 Stat. 1027, 1029, Act of April
30, 1912, c. 97, 37 Stat. 94, 96, Act of Feb. 28, 1913, c. 86, 37
Stat. 688, 689, Act of June 30, 1914, c. 132, 38 Stat. 442, 444,
Act of Mar. 4, 1915, c. 145, 38 Stat. 1116, 1117, Act of July 1,
1916, c. 208, 39 Stat. 252, 253, Act of Mar. 3, 1917, c. 161, 39
Stat. 1047, 1049, Act of April 15, 1918, c. 52, 40 Stat. 519, 520,
Act of Mar. 4, 1919, c. 123, 40 Stat. 1325, 1327, Act of June 4,
1920, c 223, 41 Stat. 739, 741, Act of Mar. 2, 1921, c. 113, 41
Stat. 1205, 1207, Act of June 1, 1922, c. 204, 42 Stat. 599, 601,
Act of Jan. 3, 1923, c. 21, 42 Stat. 1068, 1070, student
interpreters for China, Japan, and Turkey.

															[ Footnote 2/53 ]

															Joint Res. of Dec. 15, 1877, No. 1, § 2, 20 Stat. 245,
commissioners to the International Industrial Exposition in Paris;
Act of June 18, 1898, c. 466, § 1, 30 Stat. 476, Industrial
Commission; Act of Aug. 23, 1912, c. 351, § 1, 37 Stat. 415,
Commission on Industrial Relations; Act of Dec. 23, 1913, c. 6, §
10, 38 Stat. 251, 260, amended by Act of June 3, 1922, c. 205, 42
Stat. 620, Federal Reserve Board; Act of Feb. 23, 1917, c. 114, §
6, 39 Stat. 929, 932, Federal Board for Vocational Education; Act
of Feb. 28, 1920, c. 91, § 304, 41 Stat. 456, 470.

															[ Footnote 2/54 ]

															Act of Aug. 6, 1861, c. 62, § 3, 12 Stat. 320, Board of Police
Commissioners for the District of Columbia; Act of Feb. 16, 1863,
c. 37, § 3, 12 Stat. 652, 653, commissioners to settle Sioux
Indians' claims; Act of Mar. 3, 1863, c. 106, § 1, 12 Stat. 799,
levy court of the District of Columbia; Act of Mar. 3, 1871, c.
105, § 2, 16 Stat. 470, 471, commissioners to the Philadelphia
Exposition; Joint Res. of Dec. 15, 1877, No. 1, § 2, 20 Stat. 245,
commissioners to the International Industrial Exposition in Paris;
Act of Mar. 3, 1879, c. 202, § 1, 20 Stat. 484, National Board of
Health; Act of Aug. 5, 1882, c. 389, § 4, 22 Stat. 219, 255, civil
employees of certain departments; Act of Jan. 16, 1883, c. 27, § 2,
22 Stat. 403, civil service appointees; Act of Feb. 10, 1883, § 3,
22 Stat. 413, commissioners of World's Industrial and Cotton
Centennial Exposition; Act of April 25, 1890, c. 156, § 3, 26 Stat.
62, World's Columbian Exposition Commission; Act of Aug.19, 1890,
c. 807, 26 Stat. 336, 354-355, commissions to negotiate Indian
treaties and investigate reservations; Act of Mar. 3, 1893, c. 209,
§ 1, 27 Stat. 612, 633, commission to select allotted Indian lands;
Act of June 10, 1896, c. 398, 29 Stat. 321, 342, commission to
adjust Indian boundaries; Act of Sept. 7, 1916, c. 451, § 3, 39
Stat. 728, 729, amended by Act of June 5, 1920, c. 250, § 3a, 41
Stat. 988, 989, United States Shipping Board; Act of Mar. 4, 1921,
c. 171,-§ 3, 41 Stat. 1441, 1442, commission to appraise buildings
of Washington Market Company; Act of June 3, 1922, c. 205, 42 Stat.
620, Federal Reserve Board; Joint Res. of Mar. 3, 1925, c. 482, §
1, 43 Stat. 1253, National Advisory Commission to the
Sesquicentennial Exhibition Association.

															[ Footnote 2/55 ]

															(a) Selection to be from civil employees: Joint Res. of Feb. 9,
1871, No. 22, § 1, 16 Stat. 593, 594, commissioner of fish and
fisheries; Act of May 27, 1908, c. 200, § 11, 35 Stat. 317, 388,
board of managers of Alaska-Yukon-Pacific Exposition; Act of June
23, 1913, c. 3, 38 Stat. 4, 76, Panama-Pacific Exposition
Government Exhibit Board.

															(b) Selection to be from particular civil employees: Act of
April 5, 1906, c, 1366, § 4, 34 Stat. 99, 100, consulate inspectors
from consulate force.

															(c) Selection to be from army officers: Act of July 20, 1867, c.
32, § 1, 15 Stat. 17, commission to treat with hostile Indians; Act
of Mar. 3, 1873, c. 316, § 1, 17 Stat. 622, commission to report on
irrigation in the San Joaquin valley; Act of Mar. 1, 1893, c. 183,
§ 1, 27 Stat. 507, California Debris Commission; Act of June 4,
1897, c. 2, 30 Stat. 11, 51, board to examine Arkansas Pass; Joint
Res. of Aug. 9, 1912, No. 40, § 2, 37 Stat. 641, commission to
investigate Mexican insurrection claims; Act of Mar. 4, 1923, c.
283, § 1, 42 Stat. 1509, secretary of American Battle Monuments
Commission.

															(d) Selection to be from army and navy: Act of April 14, 1818, c
58, § 1, 3 Stat. 425, coast surveyors.

															(e) Boards to include civilian representative of the Government:
Act of Mar. 1, 1907, c. 2285, 34 Stat. 1015, 1036, Act of May 30,
1910, c. 260, § 4, 36 Stat. 448, 450, Act of June 1, 1910, c. 264,
§ 7, 36 Stat. 455, 457, Act of Aug. 3, 1914, c. 224, § 3, 38 Stat.
681, 682, various commissions to appraise unallotted Indian lands
to include one representative of the Indian Bureau; Joint Res. of
Mar. 4, 1911, No. 16, 36 Stat. 1458, commission to investigate cost
of handling mail to include one Supreme Court Justice.

															(f) Commissions to include army officers: Act of April 4, 1871,
c. 9, § 1, 17 Stat. 3, commission to examine Sutro Tunnel; Act of
June 13, 1902, c. 1079, § 4, 32 Stat. 331, 373, commission on
Canadian boundary waters; Act of Aug. 8, 1917, c. 49, § 18, 40
Stat. 250, 269, Inland Waterways Commission.

															(g) Commissions to include army and navy officers: Act of Aug.
31 1852, c. 1 2 § 8, 10 Stat. 112, 119, Light House Board; Act of
June 4, 1897, c. 2, 30 Stat. 11, 59, Nicaragua Canal Commission;
Act of June 28, 1902, c. 1302, § 7, 32 Stat. 481, 483, Isthmian
Canal Commission; Joint Res. of June 28, 1906, No. 37, 34 Stat.
835, commission to appraise Chesapeake and Delaware Canal; Act of
Aug. 24, 1912, c. 387, § 18, 37 Stat. 512, 517, Alaskan Railroad
Commission.

															(h) Commissions to include army and coast survey officers; Act
of June 23, 1874, c. 457, § 3, 18 Stat. 237, 244, board of harbor
engineers; Act of June 28, 1879, c. 43, § 2, 21 Stat. 37,
Mississippi River Commission.

															(i) Board to include navy officers and official of Life Saving
Service: Act of July 9, 1888, c. 593, § 1, 25 Stat. 243, delegates
to International Marine Conference.

															[ Footnote 2/56 ]

															Act of Feb. 25, 1863, c. 58, § 1, 12 Stat. 665, Comptroller of
the Currency, on nomination of the Secretary of the Treasury,
amended by Act of June 3, 1864, c. 106, § 1, 13 Stat. 99; Act of
April 23, 1880, c. 60, § 4, 21 Stat. 77, 78, United States
International Commission, on nominations of state governors; Act of
Feb. 10, 1883, c. 42, §§ 2, 3, 22 Stat. 413, managers of World's
Industrial and Cotton Centennial Exposition, on recommendation of
executive committee of National Cotton Planters' Association and
majority of subscribers to enterprise in the city where it shall be
located, commissioners to the Exposition to be appointed on
nomination of state governors; Act of July 1, 1902, c. 1362, § 59,
32 Stat. 641, 654, commission to sell coal and asphalt deposits in
Indian lands, one appointment to be made on recommendation of
principal chief of Choctaw Nation, one on recommendation of
Governor of Chickasaw Nation; Act of Feb. 23, 1920, c. 91, § 304,
41 Stat. 456, 470, Railroad Labor Board, three to be appointed from
six nominees made by employees, three to be appointed from six
nominees made by carriers.

															[ Footnote 2/57 ]

															On July 25, 1868, the Senate, having confirmed the nomination of
J. Marr as collector of internal revenue in Montana Territory,
voted to reconsider the nomination, and ordered the nomination to
be returned to the President "with the notification that the
nominee is ineligible on account of nonresidence in the district
for which he is nominated." 16 Ex.Journ. 372. President Johnson
thereafter did not press Marr's nomination, but appointed A. J.
Simmons to the office. 16 ibid. 429.

															[ Footnote 2/58 ]

															The Tenure of Office Act as originally introduced excepted from
its operation the Secretaries of State, Treasury, War, Navy,
Interior and the Postmaster General. Howe's attempts to strike out
this exception, opposed by Senators Edmunds and Sherman, who were
the principal sponsors of the Act, failed twice in the Senate. A
similar attempt in the House succeeded after first being rejected.
The Senate again refused to concur in the House amendment. The
amendment was, however, insisted upon by the House conferees.
Finally, the Senate, by a margin of three, votes agreed to accept
the conference report. Cong.Globe, 39th Cong., 2d sess., 1518.

															[ Footnote 2/59 ]

															The occasion of the passage of the Tenure of Office Act was the
threatened attempt of President Johnson to interfere with the
reconstruction policies of Congress through his control over
patronage. An attempt by Schenck to secure its recommitment to the
Joint Select Committee on Retrenchment was placed upon the ground
that "this whole subject was expressly referred to that committee"
which had before it "the bill introduced by the select committee on
the civil service, at the head of which is the gentleman from Rhode
Island [Mr. Jenckes]." Cong.Globe, 39th Cong., 2d sess., 23.
Senator Edmunds, in resisting an attempt to expand the Tenure of
Office Act to require the concurrence of the Senate in the
appointment of all civil officers receiving more than $1,000 per
annum, referred to the Jenckes bill as "another branch of the
subject which is under consideration elsewhere." Ibid., 489. The committee, in introducing the Tenure of Office Act,
speaking through Senator Edmunds,

															"recommended the adoption of this rule respecting the tenure of
officers as a permanent and systematic, and as they believe an
appropriate regulation of the Government for all Administrations
and for all time." Ibid., 382.

															[ Footnote 2/60 ]

															The attempt on the part of the House to repeal the Act in 1869
brought forth the opposition of those members of the Senate who
were most active in the general movement for civil service reform.
Jenckes had voted against the repeal in the House. Carl Schurz,
who, on Dec. 20, 1869, introduced a bill for the competitive
principle in the civil service, opposed the repeal, and urged that
it be recast at the next session more effectually to effect the
desired civil service reform. Cong.Globe, 41st Cong., 1st sess.,
155-156. Trumbull, speaking for the Committee on Judiciary, said
that

															"they were unwilling after Congress had with such unanimity
adopted this law within the last two years, and adopted it upon the
principle that some law of this kind was proper to regulate the
civil service, to recommend its absolute repeal . . . they thought
it better to recommend the suspension of the act until the next
session of Congress, and then Congress can either repeal it or
adopt some civil service bill which in its judgment shall be
thought to be for the best and permanent interests of the
country." Ibid,. 88. The National Quarterly Review, recognizing
the essential unanimity of purpose between the Tenure of Office Act
and other measures for civil service reform, said in 1867:

															"The recent legislation on this subject by Congress was the
first step in the right direction; Mr. Jencke's bill is the second;
but the one without the other is incomplete and unsafe."

															House Rep. No. 47, 40th Cong., 2d sess., Ser. No. 1352, p 93

															[ Footnote 2/61 ]

															The attempt to repeal the Act was resisted in the House by
Holman on the ground that, since

															"the general impression exists in the country that executive
patronage should be in some form reduced, rather than increased . .
. this fragment of the original law should remain in force."

															Cong.Globe, 42nd Cong., 2d sess., 3411.

															[ Footnote 2/62 ]

															Edmunds, one of the few Senators still acquainted with the
circumstances of its passage, thus protested against the passage of
the repealing Act:

															"It is, as it looks to me, as if we were to turn our backs now
and here upon the principle of civil service reform . . . the
passage of this bill would be the greatest practical step backward
on the theory of the reformation of the civil service of the United
States."

															18 Cong.Rec. 137.

															[ Footnote 2/63 ]

															The Jenckes bill was introduced in the House on Dec. 20, 1865.
Sumner had already, on April 30, 1864, presented in the Senate a
bill for a classified civil service. On June 1, 1866, the House
Committee on Civil Service Reform reported out the Jenckes bill. It
contained, among other provisions, a section requiring the proposed
commission to prescribe, subject to the approval of the President,
the misconduct or inefficiency which would be sufficient ground for
removal, and also the manner by which such charges were to be
proved. This provision was retained in the succeeding bills
sponsored by Jenckes in the House. The provision was expressly
omitted from the Pendleton bill, which later became the Civil
Service Act of 1883, in order not to endanger the passage of a
measure for a classified civil service by impinging upon the
controversial ground of removal. Senators Sherman and Brown
attempted to secure legislation restricting removal by amendments
to the Pendleton bill. 14 Cong.Rec. 210, 277, 364. In the First
Session of the Thirty-ninth Congress, no action was taken upon the
Jenckes bill, but the bill was reintroduced in the following
session on Jan. 29, 1867. An attempt on the part of Jenckes, after
the initial passage of the Tenure of Office Act, to secure the
passage of his bill resulted in the tabling of his scheme on Feb.
6, 1867, by a vote of 72 to 66.

															[ Footnote 2/64 ]

															This measure appears to have been first suggested on May 4,
1826, in a bill which accompanied the report presented by Benton
from the Select Committee of the Senate appointed to investigate
executive patronage, when abuse of the power by President John
Quincy Adams was apprehended. Sen.Doc. No. 88, 19th Cong., 1st
sess., Ser. No. 128. On Mar. 23, 1830, Barton's resolution
asserting the right to such information was reported. Sen.Doc. 103,
21st Cong., 1st sess., Ser. No.193. On April 28, 1830, the proposal
was renewed in a resolution introduced by Holmes. 6 Cong.Deb. 385.
In 1835, it was embodied in the Executive Patronage Bill, which
passed the Senate on two successive occasions, but failed of action
in the House.

															[ Footnote 2/65 ]

															This measure appears to have been first suggested by President
Monroe in his message of Dec. 2, 1823. 41 Ann.Cong. 20. Its
proposal for enactment into law was first suggested on May 4, 1826,
by the report of the Select Committee appointed by the Senate on
possible abuses of Executive Patronage. In 1832, the proposal was
again brought forward by Vance of Ohio in the nature of an
amendment to the postal legislation, 8 Cong.Deb.1913. On Mar. 7,
1834, Clay's resolutions, that advocated the concurrence of the
Senate in removals, also included a proposal for the appointment of
postmasters by the President with the concurrence of the Senate. On
Jan. 28, 1835, a report by the Senate Committee on Post Offices
called attention to the extended removals of postmasters. Sen.Doc.
No. 86, 23rd Cong., 2d sess., Ser. No. 268, p. 88. This report led
to the introduction in 1835, and passage by the Senate of a bill
reorganizing the Post Office which contained the proposal under
consideration. The House having failed to act upon the 1835 bill,
it was reintroduced at the next session and passed by both Houses.
Act of July 2, 1836, c. 270, 5 Stat. 80. See also Sen.Doc.
No. 362, 24th Cong., 1st sess., Ser. No. 283.

															[ Footnote 2/66 ]

															This measure appears to have been first proposed in Congress by
Clay on Mar. 7, 1834. 10 Cong. Deb. 834. In 1835, it was, in
substance, embodied in an amendment proposed by him to the
Executive Patronage Bill, which read:

															"That in all instances of appointment to office by the
President, by and with the advice and consent of the Senate, the
power of removal shall be exercised only in concurrence with the
Senate; and, when the Senate is not in session, the President may
suspend any such officer, communicating his reasons for the
suspension during the first month of its succeeding session, and if
the Senate concur with him, the officer shall be removed; but if it
do not concur with him, the officer shall be restored to
office."

															11 Cong.Deb. 523. In 1836 when a Senate Committee of Commerce
investigated the removal of a gauger for political reasons, Levi
Woodbury, then Secretary of the Treasury, suggested the assumption
of Congressional control over removals, saying:

															"The Department deems it proper to add that . . . a great relief
would be experienced if . . . the power of original appointment and
removal in all these cases should be vested in Congress, if the
exercise of it there is deemed more convenient and safe, and, at
the same time, constitutional."

															Sen.Doc. No. 430, 24th Cong., 1st sess., Ser. No. 284, p.
30.

															[ Footnote 2/67 ]

															On July 1, 1841, Benton again reintroduced a proposal of this
nature. Cong.Globe, 27th Cong., 1st sess., 63. On May 23, 1842, a
Select Committee on Retrenchment reported to the House on the
necessity of diminishing and regulating executive patronage,
saying

															"they entertain no doubt of the power of Congress to prescribe,
and of the propriety of prescribing, that, in all cases of removal
by the President, he shall assign his reasons to the Senate at its
next session."

															House Rep. No 741, 27th Cong., 2d sess., Ser. No. 410, p. 5. See also Report of July 27, 1842, House Rep. No. 945, 27th
Cong., 2d sess., Ser. No. 410; 5 Ex.Journ. 401. On Jan. 3, 1844,
after an attempt to impeach President Tyler for misusing the
appointing power had failed, Thomasson in the House again sought to
secure the adoption of such a measure. On December 24, 1849, after
the Post Office Department under Taylor's administration had
recorded 3,406 removals, Bradbury proposed a resolution requiring
the President to give the number and reasons for removals made from
the beginning of his term of office. Senator Mangum, in order to
cut short debate on the resolution, contended that it was an
unconstitutional invasion of executive powers, and called for a
test vote upon the resolution. The Senate divided 29 to 23 in
upholding its right to demand reasons for removals. Cong.Globe,
31st Cong., 1st sess., 160. On Jan. 4, 1850, the Senate adopted a
resolution calling for a report upon the number and reasons for
removals of deputy postmasters. Ibid. 100.

															[ Footnote 2/68 ]

															The character that this movement to restrict the power of
removal had assumed in consequence of the continuance of the spoils
system is illustrated by the remarks of Bell in the Senate in
1850:

															"To restrain this power by law, I would urge as one of the
greatest reforms of the age, so far as this Government is
concerned. . . . Sir, I repeat, that to restrain by law this
unlimited, arbitrary, despotic power of the Executive over the
twenty or thirty thousand valuable public officers of the country
-- the tendency of which is to make them slave of his will -- is
the greatest reform demanded by the true interest of the country,
no matter who may at any time be the tenant of the White
House."

															Cong.Globe, 31st Cong., 1st sess., App. 1043. Restrictions were
twice advocated in the official utterances of President Tyler. 4
Messages and Papers of the Presidents, 50, 89. See also Report of June 15, 1844, by Sen. Com. on Retrenchment; Sen.Doc.
399, 28th Cong., 1st sess., Ser. No. 437, p. 55; Resolution of Dec.
17, 1844, by Grider in the House, Cong.Globe, 28th Cong., 2d sess.,
40.

															[ Footnote 2/69 ]

															Act of Feb. 25, 1863, c. 58, § 1, 12 Stat. 665.

															[ Footnote 2/70 ]

															By the Act of Mar. 3, 1853, c. 97, § 3, 10 Stat. 189, 211,
clerks in the departments of the Treasury, War, Navy, Interior and
Post Office were to be classified, and appointments to the various
classes were to be made only after examination by a select board.
This scheme was later abandoned after it became evident that the
examinations prescribed were conducted arbitrarily, and with no
attempt to determine the fitness of candidates for positions. Fish,
Civil Service and Patronage, 183. By the Act of Aug. 18, 1856, c.
127, § 7, 11 Stat. 52, 55, the appointment of twenty-five consular
pupils was authorized, and examinations were to be conducted to
determine the fitness of applicants for appointment. This provision
was, however, stricken from the diplomatic and consular
appropriation bill in the next session of Congress. The principle
was not returned to again until the Act of June 20, 1864, c. 136, §
2, 13 Stat. 137, 139.

															[ Footnote 2/71 ]

															Chief Justice Marshall said of the proceedings of 1789:

															"In organizing the departments of the executive, the question in
what manner the high officers who filled them should be removable
came on to be discussed."

															5 Marshall, Life of Washington, 196.

															[ Footnote 2/72 ]

															Of the ten Senators who had been members of the Constitutional
Convention of 1787, four voted against the bill. A fifth, Bassett,
changed sides during the debate. Maclay, Sketches of Debate,
110.

															[ Footnote 2/73 ]

															The six who held that the Constitution vested a sole power of
removal in the President were Baldwin, 1 Ann.Cong. 557-560; Benson,
1 ibid. 505-507; Boudinot, 1 ibid. 526-532;
Clymer, 1 ibid. 489; Madison, 1 ibid. 546;
Vining. 1 ibid. 585. Madison, at first, considered it
subject to Congressional control. 1 Ann.Cong. 374-375. Seven held
that the power of removal was a subject for Congressional
determination, and that it was either expedient or inexpedient to
grant it to the President alone. Hartley, 1 Ann.Cong. 585;
Lawrence, 1 ibid. 583; Lee, 1 ibid. 523-526;
Sedgwick, 1 ibid. 582-583; Sherman, 1 ibid. 491-492; Sylvester, 1 ibid. 560-563; Tucker, 1 ibid. 584-585. Five held that the power of removal was
constitutionally vested in the President and Senate. Gerry, 1
Ann.Cong. 502; Livermore, 1 ibid. 477-479; Page, 1 ibid. 519-520; Stone, 1 ibid. 567; White, 1 ibid. 517. Two held that impeachment was the exclusive
method of removal. Jackson, 1 Ann.Cong. 374, 529-532; Smith, of
South Carolina, 1 Ann.Cong. 457, 507-510. Three made desultory
remarks, Goodhue, 1 Ann.Cong. 378, 533-534; Huntington, 1 Ann.Cong.
459, and Scott, 1 Ann.Cong. 532-533, which do not admit of
definitive classification. Ames was only certain that the Senate
should not participate in removals, and did not differentiate
between a power vested in the President by the Constitution and a
power granted him by the legislature. 1 Ann.Cong. 473-477, 538-543.
He inclined, however, towards Madison's construction. 1 Works of
Fisher Ames, 56. During the earlier debate upon the resolutions for
the creation of Executive Departments, Bland had contended that the
Senate shared in the power of removal. 1 Ann.Cong. 373-374. The
conclusion that a majority of the members of the House did not hold
the view that the Constitution vested the sole power of removal in
the President was expressed by Senator Edmunds. 3 Impeachment of
Andrew Johnson, 84. It had been expressed twenty years earlier by
Lockwood, J., of the Supreme Court of Illinois, in a case involving
a similar question and decided adversely to Madison's contention. Field v. People, 2 Scamm. 79, 162-173.

															[ Footnote 2/74 ]

															Madison's plea for support was addressed not only to those who
conceived the power of removal to be vested in the President, but
also to those who believed that Congress had power to grant the
authority to the President and that, under the circumstances it was
expedient to confer such authority. After expressing his own views
on the subject, he continued:

															"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."

															1 Ann.Cong. 464.

															[ Footnote 2/75 ]

															The initial vote of 34 to 20, defeating a motion to strike out
the words "to be removable by the President," was indecisive save
as a determination that the Senate had no constitutional right to
share in removals. Madison, June 22, 1789, 1 Ann.Cong. 5757.
"Indeed, the express grant of the power to the president rather
implied a right in the legislature to give or withhold it at their
discretion." 5 Marshall, Life of Washington, 200. Benson,
therefore, proposed to remove this ambiguity by striking out the
words "to be removable by the President," and inserting "whenever
the said principal officer shall be removed from office by the
President of the United States," thus implying the existence of the
power in the President irrespective of legislative grant. The
motions were successful, and their adoption has been generally
interpreted as a legislative declaration of Benson's purpose. Such
interpretation, although oft repeated, is not warranted by the
facts of record. The individual votes on these two motions are
given. An examination of the votes of those whose opinions are also
on record shows that Benson's first motion succeeded only as a
result of coalition between those who accepted Madison's views and
those who considered removal subject to Congressional control but
deemed it advisable to vest the power in the President. The vote on
Benson's second motion to strike out the words "to be removable by
the President" brought forth a different alignment. The minority
now comprised those who, though they believed the grant of power to
be expedient, did not desire to imply the existence of a power in
the President beyond legislative control. Whereas the majority
exhibits a combination of diverse views -- those who held to
Madison's construction, those who initially had sought to strike
out the clause on the ground that the Senate should share in
removals, and those who deemed it unwise to make any legislative
declaration of the Constitution. Thus, none of the three votes in
the House revealed its sense upon the question whether the
Constitution vested an uncontrollable power of removal in the
President. On the contrary, the votes on Benson's amendments reveal
that the success of this endeavor was due to the strategy of
dividing the opposition, and not to unanimity of constitutional
conceptions.

															[ Footnote 2/76 ]

															Presidents Jackson, 3 Messages and Papers of the Presidents,
133; Johnson, 6 ibid. 492; Cleveland, 8 ibid. 379; Wilson, 59 Cong.Rec. 8609.

															[ Footnote 2/77 ]

															On Feb. 2, 1835, the Senate adopted a resolution requesting the
President to communicate to the Senate copies of the charges
against Gideon Fitz, surveyor-general, in that such information was
necessary for its constitutional action upon the nomination of his
successor. 4 Ex.Journ. 465. On Feb. 10, 1835, President Jackson
refused to comply with these alleged " unconstitutional demands." 4
Ex.Journ. 468. On Jan. 25, 1886, the Senate adopted a resolution
directing the Attorney General to transmit copies of documents on
file in the Department of Justice relating to the management of the
office of district attorney for the southern district of Alabama.
J. D. Burnett had been nominated to the office in place of G. M.
Duskin suspended. 25 Ex.Journ. 294. On Feb. 1, 1886, a letter from
the Attorney General was laid before the Senate refusing to accede
with the request by direction of the President. On Mar. 1, 1886,
President Cleveland, in a message to the Senate, denied the
constitutional right of the Senate to demand such information. 8
Messages and Papers of the Presidents, 375.

															[ Footnote 2/78 ]

															During March, 1830, prior to the Fitz episode, three resolutions
to request the President to communicate grounds for the removal of
inferior officials failed of adoption in the Senate. 4 Ex.Journ.
75, 76, 79. However, during April, 1830, in the case of nominations
sent to the Senate for confirmation, resolutions requesting the
President to communicate information relative to the character and
qualifications of the appointees were adopted and complied with by
President Jackson. 4 ibid. 86, 88, 92.

															The instances of President Johnson's compliance with the second
section of the Tenure of Office Act, requiring the communication of
reasons for the suspension of inferior officials during the recess
of the Senate, have been enumerated. See Notes 272 U.S.
52 fn2/23|>23 and 272 U.S.
52 fn2/24|>24, supra. President Johnson also
complied with a resolution adopted by the Senate on Dec. 16, 1867,
requesting him to furnish the petitions of Idaho citizens, filed
with him, remonstrating against the removal of Governor Ballard. 16
Ex.Journ. 109, 121. Also, on April 5, 1867, his Attorney General
complied with a Senate resolution calling for papers and other
information relating to the charges against a judge of Idaho
Territory whose removal the President was seeking through the
appointment of a successor. 15 ibid. 630, 644. On Feb. 18,
1867, his Postmaster General, in compliance with a House resolution
of Dec. 6, 1866, transmitted the number and reasons for the
removals of postmasters, appointed by the President, between July
28, 1866, an Dec. 6, 1866. House Ex.Doc. No. 96, 39th Cong., 2d
sess., Ser. No. 1293. His Secretary of the Interior also complied
with a House resolution requesting information as to removals and
reasons therefor in the department. House Ex.Doc. No. 113 39th
Cong., 2d sess., Ser. No. 1293.

															Prior to the date on which President Cleveland upheld his right
to refuse the Senate information as to the conduct of a suspended
official, his Secretary of the Treasury twice complied with
requests of the Senate for such information. 25 Ex.Journ. 312, 317.
These requests were couched in substantially the same form as that
which was refused in the Duskin case. Subsequent to that date,
compliances with similar resolutions are recorded in four further
cases, two by the Secretary of the Treasury, one by the Postmaster
General and one by the Attorney General. 25 Ex. Journ 362, 368,
480, 559.

															[ Footnote 2/79 ]

															On Mar. 2, 1847, President Polk complied with a Senate
resolution requesting reasons and papers relating to the failure to
send in Captain H. Holmes' name for promotion. 7 Ex.Journ. 227. On
Sept. 2, 1850, President Fillmore complied with a Senate resolution
requesting the President to communicate correspondence relating to
"the alleged resignation" of Lieut. E. C. Anderson. 8 ibid. 226. Fillmore, in compliance with a Senate
resolution of Aug. 14, 1850, laid before the Senate a report of the
Postmaster General communicating the charges on file against the
deputy postmaster at Milwaukee. 8 ibid. 220. Nominations
having been made for the collectorships of New York and Chicago and
the former incumbents suspended, Edmunds on Nov. 26, 1877, proposed
a resolution directing the Secretary of the Treasury to transmit
all papers bearing upon the expediency of removing the collectors.
On Jan. 15, 1879, the Secretary of the Treasury communicated to the
Senate an official report, and on Jan. 31, 1879, President Hayes
forwarded his reasons for the suspensions. 21 ibid. 140,
455, 497.

															Compliances with Senate resolutions directed to the Heads of
Departments relative to the removal of Presidential appointees are
also on record. In response to a House resolution of Feb. 13, 1843,
requesting the charges against Roberts and Blythe, collectors, and
the names of the persons who petitioned for their removal, the
Secretary of the Treasury transmitted the material that he had in
his control. House Doc. No. 158, 27th Cong., 3rd sess., Ser. No.
422. On Jan. 14, 1879, the Secretary of the Treasury complied with
a Senate resolution requesting the charges on file against the
Supervising Inspector-General of Steamboats. 21 Ex.Journ. 454. On
Jan. 20, 1879, the Secretary of the Treasury complied with a Senate
resolution calling for the papers showing why Lieutenant Devereux
was discharged from the Revenue Marine Service. 21 ibid. 470. The Secretary of the Navy complied with a Senate resolution of
Feb 25, 1880, asking why Edward Bellows was dropped from the roll
of paymasters. Sen.Doc. No. 113, 46th Cong., 2d sess., Ser. No.
1885.

															Presidents Van Buren and Tyler also complied with resolutions
requesting the number of removals. Sen.Doc. No. 399, 28th Cong.,
1st sess., Ser. No. 437, p. 351; House Doc. No. 48, 27th Cong., 1st
sess., Ser. No. 392.

															Senate resolutions, occasioned by the nomination of the
successor in place of a former incumbent, requesting information as
to the conduct or ability of the successor, have been complied with
by Presidents Monroe on Feb. 1, 1822 (3 Ex.Journ. 273); Jackson on
April 12, and 15, 1830 (4 ibid. 88, 92), and on April 24,
1834 (4 ibid. 390); by Tyler on June 29, 1842 (6 ibid. 97); by Polk on June 23, 1848 (7 ibid. 435); by Fillmore on Sept. 16, 1850 (8 ibid. 232); by
Buchanan on Mar. 2, 1858 (10 ibid. 237); by Grant on Dec.
21, 1869 (17 ibid. 326), and by Heads of departments under
Polk on June 23, 184 (7 ibid. 435); under Fillmore on
Sept. 25, 1850, and Feb. 17, 1853 (8 ibid. 250, 9 ibid. 33); under Lincoln on Jan. 22, 1862, and on Feb. 23,
1865 (12 ibid. 95, 14 ibid. 135). The practice
appears to have been suggested by President Washington. The Senate
having rejected a nomination, President Washington, on Aug. 7,
1789, in nominating a successor, said:

															"Permit me to submit to your consideration whether, on occasions
when the propriety of nominations appears questionable to you, it
would not be expedient to communicate that circumstance to me, and
thereby avail yourselves of the information which led me to make
them, and which I would with pleasure lay before you."

															1 Ex.Journ. 16.

															[ Footnote 2/80 ]

															The Executive Patronage Bill, containing such a requirement,
passed the Senate on Feb. 21, 1835, and on Feb. 3, 1836. A test
vote on the Senate's right in 1850 is also on record. See 272 U.S.
52 fn2/67|>Note 67, supra. Following the protest of
President Cleveland, resolutions condemnatory of the Attorney
General's refusal "under whatever influence" to communicate the
information requested were favorably reported to the Senate,
debated at length, and passed. Among the members of the committee
advocating the adoption of the resolutions were Hoar and Evarts,
the two most energetic opponents of the Tenure of Office Act.
Sen.Rep. No. 135, 49th Cong., 1st sess., Ser. No. 2358. The Acts of
1864 and 1873, approved by Presidents Lincoln and Grant, embody
such a requirement. See 272 U.S.
52 fn2/33|>Note 33, supra. [ Footnote 2/81 ]

															^81. Attorneys General Legare, Clifford, and Crittenden seem to
have been of the opinion that the President possessed an absolute
power of removal. 4 Op.A.G. 1, 603; 5 ibid. 288. Legare,
however, having occasion to consider Story's contention that the
power of removal might be restricted by legislation with respect to
inferior officers, said that he was "not prepared to dissent from
any part of this sweeping proposition." 4 ibid. 165, 166.
In 1818, Attorney General Wirt, in holding that, where an Act of
Congress gave the President power to appoint an officer, whose
tenure of office was not defined, that officer was subject to
removal by the President, said:

															"Whenever Congress intend a more permanent tenure, (during good
behaviour, for example), they take care to express that intention
clearly and explicitly. . . ."

															1 ibid. 212, 213. Following the passage of the Tenure
of Office Act, the subject was considered by Attorney General
Evarts, who disposed of the problem "within the premises of the
existing legislation." 12 ibid. 443, 449. In 1873,
Attorney General Akerman refused to concede the President a power
of removal in that, under that Act, he was limited to a power of
suspension. 13 ibid. 300. In 1877, Attorney General Devens
concurred in the provisions of the Tenure of Office Act restoring a
suspended officer to his office upon the failure of the Senate to
act upon the confirmation of his successor. 15 ibid. 375.

															[ Footnote 2/82 ]

															The Connecticut Charter of 1662, vested the appointment of
practically all officers in the assembly, and provided that such
officers were to be removable by the Governor, Assistants, and
Company for any misdemeanor or default. The Rhode Island Charter of
1663 contained the same provisions. The Massachusetts Charter of
1691 provided for the appointment of officers by and with the
advice and consent of the Council. Under Governors Phipps and
Stroughton, the council asserted its rights over appointments and
dismissals, and in 1741, Shirley was prevented from going back to
the earlier arbitrary practice of Governor Belcher. Spencer,
Constitutional Conflict in Massachusetts, 28. The Georgia Charter
of 1732 provided that the common council should have power to
nominate and appoint and

															"at their will and pleasure to displace, remove and put out such
treasurer or treasurers, secretary or secretaries, and all such
other officers, ministers and servants."

															[ Footnote 2/83 ]

															As early as 1724, Mrs. Hannah Penn, in her instructions to Sir
William Keith, governor of Pennsylvania, protested against his
dismissal of the Secretary without seeking the advice of his
council. The practice of seeking such advice continued in later
years. Shepherd, Proprietary Government in Pennsylvania, 321,
370.

															[ Footnote 2/84 ]

															In the Royal Colonies, there was a recognized tendency to guard
against arbitrariness in removals by making the governor
responsible to the home government, instead of the local
representative assembly. In New Hampshire, the first and second
Andros Commissions entrusted the power to the governor alone, but
the Bellomont Commission of 1697, the Dudley Commission of 1702,
the Shute Commission of 1716, the Burnet Commission of 1728, the
Belcher Commission of 1729, the Wentworth Commission of 1741, and
the John Wentworth Commission of 1766 were accompanied with
instructions requiring either that removals be made only upon good
and sufficient cause or upon cause signified to the home government
in the "fullest & most distinct manner." In Virginia, similar
instructions accompanied the issuance of commissions to Governor
Howard in 1683 and to Governor Dunmore in 1771.

															[ Footnote 2/85 ]

															Smith of South Carolina, June 17, 1789, 1 Ann.Cong. 471; Gerry,
June 17, 1789, 1 Ann.Cong. 504. See 272 U.S.
52 fn2/9|>Note 9, supra. [ Footnote 2/86 ]

															Hamilton's opinion is significant in view of the fact that it
was he who, on June 5, 1787, suggested the association of the
Senate with the President in appointments as a compromise measure
for dealing with the appointment of judges. 1 Farrand, Records of
the Federal Convention, 128. The proposition that such appointments
should be made by and with the advice and consent of the Senate was
first brought forward by Nathaniel Corham of Massachusetts, "in the
mode prescribed by the constitution of Masts." 2 ibid. 41.
Later, this association of the President and the Senate was carried
over generally to other appointments. The suggestion for the
concurrence of the Senate in appointments of executive officials
was advanced on May 29 by Pinckney in his "draught of a foederal
government" and by Hamilton in resolutions submitted by him on June
18, 1787, 1 ibid. 292; 3 ibid. 599.

															[ Footnote 2/87 ]

															Rogers, Executive Power of Removal, 11, 39. On August 6, 1787,
the Committee of Five reported the draft of the Constitution that,
in Art. X, Sect. 2, provided for a single executive who "shall
appoint officers in all cases not otherwise provided for by this
Constitution." 2 Farrand, Records of the Federal Convention, 185.
On August 20 propositions were submitted to the Committee of Five
for the creation of a Council of State consisting of the Chief
Justice, the Secretaries of domestic affairs, commerce and finance,
foreign affairs, war, marine and state. All the Secretaries were to
be appointed by the President and hold office during his pleasure.
2 ibid. 335-337. That proposition was rejected because "it
was judged that the Presidt. by persuading his council to concur in
his wrong measures, would acquire their protection. . . ." 2 ibid. 542. The criticism of Wilson, who had proposed the
Council of State, and Mason of the Senate's participation in
appointments was based upon this rejection. The lack of such a
Council was the "fatal defect" from which "has arisen the improper
power of the Senate in the appointment of public officers." 2 ibid. 537, 639.

Summary: In Myers v. United States (1926), the Supreme Court held that the President has the exclusive power to remove executive officials, and Congress cannot restrict this power by legislation. The Court interpreted the Constitution's grant of "executive power" to the President as including the power to remove officials, and viewed Senate involvement in removals as an unconstitutional infringement on executive authority. This decision affirmed the President's control over the executive branch and set a precedent for the separation of powers between the executive and legislative branches.