THE PRESIDENT'S POWER OF REMOVAL
The two most important questions of the construction of the
Constitution which came up in our early history have been
finally put at rest in our day. I have had something to do
with disposing of both of them. With the disposition of one
of them I had a leading part.
The first of these questions was whether in executing the
powers conferred upon it by the Constitution, Congress must
confine itself to such means and instrumentalities as are
strictly and indispensably necessary to their accomplishment;
or whether it might select, among the measures which fairly
promote such Constitutional ends, any method which it shall
think for the public interest, exercising this power in a
liberal way, and remembering in doing so that it is a Constitution--
the vital power of a free people,--we are defining and limiting,
and not an ordinary power of attorney.
This question first came up in Washington's Administration,
on the bill for establishing a National Bank. Seldom any
doubt is raised now as to the Constitutional power of the
National Government to accomplish and secure any of the great
results which we could not secure before the war, by reason
of what is called the doctrine of State Rights. Democrat
and Republican, men of the South and men of the North, now
agree in exercising without a scruple the power of Congress
to protect American interests by the tariff, to endow and
to subsidize railroads across the continent, and to build
an Oceanic canal.
I have in my possession, in Roger Sherman's and James Madison's
handwriting, a paper which contains the first statement of
a controversy which divided parties and sections, which inspired
Nullification, and which entered largely in the strife which
brought on the Civil War.
(In Roger Sherman's handwriting.) "You will admit that Congress
have power to provide by law for raising, depositing and applying
money for the purposes enumerated in the Constitution." X
(and generally of regulating the finances). "That they have
power so far as no particular rules are pointed out in the
Constitution to make such rules and regulations as they may
judge necessary and proper to effect these purposes. The
only question that remains is--Is a bank (a necessary and)
a proper measure for effecting these purposes? And is not
this a question of expediency rather than of right?"
(The following, on the same slip of paper, is in James Madison's
handwriting.) "Feb. 4, 1791. This handed to J. M. by Mr.
Sherman during the debate on the constitutionality of the
bill for a National bank. The line marked X given up by him
on the objection of J. M. The interlineation of 'a necessary
&' by J. M. to which he gave no other answer than a smile."
The other matter relates to the power of removal from office.
Upon that the Constitution is silent. In the beginning two
views were advocated. There was a great debate in 1789, which
Mr. Evarts declares, "decidedly the most important and best
considered debate in the history of Congress." The claim that
the power of removal is vested absolutely in the President
by the Constitution prevailed in the House of Representatives,
under the lead of Madison, by a majority of twelve, and by
the casting vote of John Adams in the Senate. Mr. Madison
said:
"The decision that is at this time made will become the permanent
exposition of the Constitution; and on a permanent exposition
of the Constitution will depend the genius and character of
the whole Government."
One party claimed that the power of removal was a necessary
incident to the power of appointment, and vested in the President
by virtue of his power to appoint. It was claimed also on
the same side that the President's duty to see the laws faithfully
executed could not be discharged if subordinates could be
kept in office against his will. In most cases the President
never executes the laws himself, but only has to see them
executed faithfully.
This view prevailed, as we have seen, in Washington's Administration.
It continued to be acted upon till the time of President Johnson.
In General Jackson's time its soundness was challenged by
Webster, Calhoun and Clay. But there was no attempt to resist
it in practice. Mr. Webster in 1835 earnestly dissented
from the original decision, while he admitted that he considered
it "a settled point; settled by construction, settled by precedent,
settled by the practice of the Government, and settled by
statute." It remained so settled, until, in the strife which
followed the rebellion, a two-thirds majority in Congress
was induced by apprehension of a grave public danger to attempt
to wrest this portion of the executive power from the hands
of Andrew Johnson. The statute of March 2, 1867, as construed
by nearly two-thirds of the Senate, enacted that officers
appointed by the predecessor of President Johnson, who, by
the law in force when they were appointed, and by the express
terms of their commission, were removable at the pleasure
of the President, should remain in office until the Senate
should consent to the appointment of their successors, or
approve their removal.
In 1867 Congress undertook to determine by statute the construction
of the Constitution as to this disputed question. Some persons
claimed that that power existed in the provision--"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 officer thereof."
The Constitutionality and effect of this statute were debated
on the trial of President Johnson. But it served its purpose
during the last two years of Johnson's Administration. Five
days after Grant's inauguration, the House of Representatives,
by a vote of 138 to 16, passed a bill totally repealing it.
The Senate was unwilling to let go the hold which it had acquired
on the Executive power, but proposed to suspend the law for
one year, so that there might be no obstacle in the path of
General Grant to the removal of the obnoxious officials who
had adhered to Andrew Johnson. So a compromise was agreed
upon. It permitted the President to suspend officers during
the vacation of the Senate, but restored officers so suspended
at the close of the next session, unless, in the meantime,
the advice and consent of the Senate had been obtained to
a removal or the appointment of a successor.
President Grant, in his message of December, 1869, urged
the repeal of this modified act on the ground that--
"It could not have been the intention of the framers of the
Constitution that the Senate 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 on 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?"
The House acted on this recommendation, and passed a bill
for the repeal of the statutes of 1867 and 1869 by a vote
of 159 to 25. For this bill the whole Massachusetts delegation,
including Mr. Dawes and myself, voted. It was never acted
on in the Senate. In 1872 a similar bill passed the House
without a division.
The Democratic Party has invariably supported the position
of Madison and Jackson, that the power of removal is vested
by the Constitution in the President, and cannot be controlled
by legislation.
This was the condition of matters when Mr. Cleveland came
into office March 4, 1885. The Revised Statutes, Sections
1767-1772, contained in substance the law as it was left by
the legislation of 1867 and 1869 (Sec. 1767): "Every person
holding any civil office to which he has been or hereafter
may be appointed by and with the consent of the Senate, and
who shall have become duly qualified to act therein, shall
be entitled to hold such office during the term for which
he was appointed, unless sooner removed by and with the advice
and consent of the Senate, or by the appointment, with the
like advice and consent, of a successor, in his place, except
as herein otherwise provided."
The President was however authorized to suspend civil officers
during the recess, except Judges, until the next session of
the Senate, and to designate a substitute who should discharge
the duties of the office, himself being subject to removal
by the designation of another.
The President was further required to nominate within thirty
days after the commencement of each session of the Senate
persons to fill all vacancies in office, which existed at
the meeting of the Senate, whether temporarily filled or not,
and in place of all officers suspended. If no appointment
were made, with the advice and consent of the Senate during
such session, the office was to be in abeyance.
It will be seen that this statute required the assent of the
Senate to the exercise of the President's power of removal,
although without its consent he could suspend the officer so
as to deprive him of the emoluments of his office.
So the appointment of a new officer by the advice and consent
of the Senate operated in such case as a removal of the person
them holding office, and a failure of the Senate to confirm
such proposed appointment had the effect to restore the officer
suspended, or temporarily removed.
Under these conditions there grew up a very earnest controversy
between President Cleveland and the Republican majority in
the Senate, led by the Judiciary Committee, of which Mr. Edmunds
was then Chairman. It has been, I suppose from the beginning
of the Government, the practice of the President to furnish
to the Senate all papers and documents in his possession relating
to the fitness of officials nominated to the Senate.
Mr. Cleveland made no objection, if I understood him correctly,
to continuing that practice. But he claimed that the Senate
had nothing to do with the exercise of his power of removal,
and therefore was not entitled to be informed of the evidence
upon which he acted in that. So he refused and sustained
the heads of Departments in refusing the request of the Senate
to send for its information the documents on file relating
to removals.
This position was encountered by the Republican majority,
some of them claiming that the Senate had the same rightful
share in the removals as in appointments, and that no difference
was to be made between the two cases. Others believed, as
I did, that although the power of removal might be exercised
by the President alone on his own responsibility, without
requiring the advice and consent of the Senate, still that
while the President was proceeding under the law by which
the appointment itself operated as a removal, and a failure
to affirm the appointment restored the old officer to his
place again, that the Senate whose action was to have that
important effect, was entitled not only to know whether the
public interest would be served by the appointment of the
proposed official on his own merits solely, but also whether
it would be best served by the removal of his predecessor
or by the restoration to office of his predecessor. Both
the President and the Senate were acting under the existing
law, treating it as in force and valid. Now suppose it were
true that the question of advising and consenting to the appointment
proposed by the President were a very doubtful one indeed,
the question on its merits being closely balanced; and the
officer to be removed or restored according as the Senate
should consent or refuse to consent, was a man of conspicuous
and unquestioned capacity and character, against whom no reasonable
objection was brought, to be removed for political reasons
solely. The Senate certainly, in exercising its power had
the right to consider all that the President had a right to
consider, and therefore it seems to me that we were justified,
in that class of cases, in asking for the documents in his
possession bearing upon the question of removal.
It will be observed that in none of the arguments of this
Constitutional question has it been claimed that the President
had the right without statute authority to suspend public
officers, even if he had the right to remove them. That right,
if he had it at all, he got under the statute under which
he and the Senate were acting.
On the 17th of July, 1885, the President issued an order
suspending George M. Duskin of Alabama, from the office of
Attorney of the United States, by virtue of the authority
conferred upon him by Sec. 1768 of the Revised Statutes,
which is a reenactment of the law of which I have just spoken.
On the 14th of December, 1885, the President nominated to
the Senate John D. Burnett, vice George M. Duskin, suspended.
The Chairman of the Committee on the Judiciary, as had been
usual in such cases, addressed a note to the Attorney-General,
asking that all papers and information in the possession of
the Department touching the conduct and administration of
the officer proposed to be removed, and touching the character
and conduct of the person proposed to be appointed, be sent
to the Committee for its information. To this the Attorney-
General replied that he was directed by the President to say
that there been sent already to the Judiciary Committee all
papers in the Department relating to the fitness of John D.
Burnett, recently nominated, but that it was not considered
that the public interests would be promoted by a compliance
with said resolution and the transmission of the papers and
document therein mentioned to the Senate in Executive session.
That made a direct issue. Thereupon a very powerful report
affirming the right of the Senate to require such papers was
prepared by Mr. Edmunds, Chairman of the Committee on the
Judiciary, and signed by George F. Edmunds, Chairman, John
J. Ingalls, S. J. R. McMillan, George F. Hoar, James F. Wilson
and William M. Evarts.
This was accompanied by a dissenting report by the minority
of the Committee, signed by James L. Pugh, Richard Coke, George
C. Vest and Howell E. Jackson, afterward Associate Justice
of the Supreme Court of the United States.
So it will be seen that the two sides were very powerfully
represented. The report of the Committee was encountered
by a message from President Cleveland, dated March 1, 1886,
in which the President claimed that these papers in the Attorney-
General's Department were in no sense upon its files, but
were deposited there for his convenience. He said: "I suppose
if I desired to take them into my custody I might do so with
entire propriety, and if I saw fit to destroy them no one
could complain." Continuing, the President says that the
demands of the Senate "assume the right to sit in judgment
upon the exercise of my exclusive discretion and Executive
function, for which I am solely responsible to the people
from whom I have so lately received the sacred trust of office."
He refers to the laws upon which the Senate based its demand
and said: "After an existence of nearly twenty years of almost
innocuous desuetude these laws are brought forth--apparently
the repealed as well as the unrepealed--and put in the way
of an Executive who is willing, if permitted, to attempt an
improvement in the methods of administration. The Constitutionality
of these laws is by no means admitted."
The President seemed to forget that he had taken action under
those laws, and had expressly cited them as the authority
for his action, in his message announcing the suspension of
the official.
The controversy waxed warm in the Senate, and in the press
throughout the country. The effect of it was that the confirmation
of Mr. Cleveland's nominees for important offices was postponed
for several months, in some cases eight to ten, but as they
were exercising their functions under temporary appointments,
it made no difference to them. When they were at last confirmed
by the Senate, they received commissions dated from the appointment
which took place after the advice and consent of the Senate.
So the four years, for which they could hold office, began
to run then, and when a new Administration of a different
politics came into power, they held their office for a period
considerably more than four years, except a few who were
actually removed by President Harrison.
I do not think the people cared much about the dispute. The
sympathy was rather with President Cleveland. The people,
both Republicans and Democrats, expected that the political
control of the more important offices would be changed when
a new party came into power, and considered Mr. Edmunds's
Constitutional argument as a mere ingenious device to protract
the day when their political fate should overtake the Republican
officials.
I united with the majority of the Committee in the report,
for the reasons I have stated above. I still think the position
of the Senate right, and that of the President wrong. But
I never agreed to the claim that the Senate had anything to
do with the President's power of removal. So I took the first
opportunity to introduce a bill repealing the provisions of
the statute relating to the tenure of office, which interfered
with the President's power of removal, so that we might go
back again to the law which had been in force from the foundation
of the Government, in the controversy with President Jackson.
A majority of the Republicans had attempted to do that, as
I have said, in the first session of Congress under President
Grant. But it had been defeated by the Senate. So I introduced
in the December session, 1886, a bill which became a law March
3, 1887, as follows:
"Be enacted, etc., That sections 1767, 1768, 1769, 1770,
1771, and 1772 of the Revised Statutes of the United States
are hereby repealed.
"Sec. 2. This repeal shall not affect any officer heretofore
suspended under the provisions of said sections, or any designation,
nomination or appointment heretofore made by virtue of the
provisions thereof.
"Approved, March 3, 1887."
But the blood of my Republican associates was up. I got
a few Republican votes for my Bill. It passed the House
by a vote of 172 to 67. Every Massachusetts Representative
voted for the Bill, as did Speaker Reed. But in general
the votes against it were Republican votes. Governor Long
made an able speech in its favor.
In the Senate three Republicans only voted with me. Among
the nays were several Senators who, as members of the House,
had voted for a Bill involving the same principle in 1869.
Mr. Evarts, though absent at the time of this vote, declared
his approval of the Bill in debate; and so, I think, did Mr.
Dawes, although of that I am not sure. Mr. Edmunds opposed
it with all his might and main.
Mr. Sherman, always a good friend of mine, remonstrated with
me. He asked me with great seriousness, if I was conscious
of the extent of the feeling among the Republicans of the
Senate at my undertaking to act in opposition to them on
this and one or two other important matters, to which he
alluded. I replied that I must of course do what seemed to
be my duty, and that in my opinion I was rendering a great
service to the Republican Party in getting rid of the controversy
in which the people sympathized generally with the Democrats,
and that I thought the gentlemen who differed from me, would
come to my way of thinking pretty soon. The result proved
the soundness of my judgment. I do not think a man can be
found in the Senate now who would wish to go back to the law
which was passed to put fetters on the limbs of Andrew Johnson.
I have asked several gentlemen who voted against the repeal
whether they did not think so, and they all now agree that
the measure was eminently wise and right. The opposition
to the statute of 1887 was but the dying embers of the old
fires of the Johnson controversy.