WASHINGTON, _March 2, 1867_.
_To the Senate of the United States_:
I have carefully examined the bill "to regulate the tenure of certain
civil offices." The material portion of the bill is contained in the
first section, and is of the effect following, namely:
That every person holding any civil office to which he has been
appointed, by and with the advice and consent of the Senate, and every
person who shall hereafter be appointed to any such office and shall
become duly qualified to act therein, is and shall be entitled
to hold such office until a successor shall have been appointed
by the President, with the advice and consent of the Senate, and duly
qualified; and that the Secretaries of State, of the Treasury, of War,
of the Navy, and of the Interior, the Postmaster-General, and the
Attorney-General shall hold their offices respectively for and during
the term of the President by whom they may have been appointed and for
one month thereafter, subject to removal by and with the advice and
consent of the Senate.
These provisions are qualified by a reservation in the fourth section,
"that nothing contained in the bill shall be construed to extend the
term of any office the duration of which is limited by law." In effect
the bill provides that the President shall not remove from their places
any of the civil officers whose terms of service are not limited by law
without the advice and consent of the Senate of the United States. The
bill in this respect conflicts, in my judgment, with the Constitution
of the United States. The question, as Congress is well aware, is by no
means a new one. That the power of removal is constitutionally vested
in the President of the United States is a principle which has been not
more distinctly declared by judicial authority and judicial commentators
than it has been uniformly practiced upon by the legislative and
executive departments of the Government. The question arose in the House
of Representatives so early as the 16th of June, 1789, on the bill for
establishing an Executive Department denominated "the Department of
Foreign Affairs." The first clause of the bill, after recapitulating
the functions of that officer and defining his duties, had these words:
"To be removable from office by the President of the United States."
It was moved to strike out these words and the motion was sustained
with great ability and vigor. It was insisted that the President could
not constitutionally exercise the power of removal exclusively of the
Senate; that the Federalist so interpreted the Constitution when arguing
for its adoption by the several States; that the Constitution had
nowhere given the President power of removal, either expressly or by
strong implication, but, on the contrary, had distinctly provided for
removals from office by impeachment only.
A construction which denied the power of removal by the President was
further maintained by arguments drawn from the danger of the abuse of
the power; from the supposed tendency of an exposure of public officers
to capricious removal to impair the efficiency of the civil service;
from the alleged injustice and hardship of displacing incumbents
dependent upon their official stations without sufficient consideration;
from a supposed want of responsibility on the part of the President, and
from an imagined defect of guaranties against a vicious President who
might incline to abuse the power. On the other hand, an exclusive power
of removal by the President was defended as a true exposition of the
text of the Constitution. It was maintained that there are certain
causes for which persons ought to be removed from office without being
guilty of treason, bribery, or malfeasance, and that the nature of
things demands that it should be so. "Suppose," it was said, "a man
becomes insane by the visitation of God and is likely to ruin our
affairs; are the hands of the Government to be confined from warding off
the evil? Suppose a person in office not possessing the talents he was
judged to have at the time of the appointment; is the error not to be
corrected? Suppose he acquires vicious habits and incurable indolence or
total neglect of the duties of his office, which shall work mischief to
the public welfare; is there no way to arrest the threatened danger?
Suppose he becomes odious and unpopular by reason of the measures he
pursues--and this he may do without committing any positive offense
against the law; must he preserve his office in despite of the popular
will? Suppose him grasping for his own aggrandizement and the elevation
of his connections by every means short of the treason defined by the
Constitution, hurrying your affairs to the precipice of destruction,
endangering your domestic tranquillity, plundering you of the means of
defense, alienating the affections of your allies and promoting the
spirit of discord; must the tardy, tedious, desultory road by way of
impeachment be traveled to overtake the man who, barely confining
himself within the letter of the law, is employed in drawing off the
vital principle of the Government? The nature of things, the great
objects of society, the express objects of the Constitution itself,
require that this thing should be otherwise. To unite the Senate with
the President in the exercise of the power," it was said, "would involve
us in the most serious difficulty. Suppose a discovery of any of those
events should take place when the Senate is not in session; how is the
remedy to be applied? The evil could be avoided in no other way than by
the Senate sitting always." In regard to the danger of the power being
abused if exercised by one man it was said "that the danger is as great
with respect to the Senate, who are assembled from various parts of the
continent, with different impressions and opinions;" "that such a body
is more likely to misuse the power of removal than the man whom the
united voice of America calls to the Presidential chair. As the nature
of government requires the power of removal," it was maintained "that it
should be exercised in this way by the hand capable of exerting itself
with effect; and the power must be conferred on the President by the
Constitution as the executive officer of the Government."
Mr. Madison, whose adverse opinion in the Federalist had been relied
upon by those who denied the exclusive power, now participated in the
debate. He declared that he had reviewed his former opinions, and he
summed up the whole case as follows:
The Constitution affirms that the executive power is vested in the
President. Are there exceptions to this proposition? Yes; there are.
The Constitution says that in appointing to office the Senate shall be
associated with the President, unless in the case of inferior officers,
when the law shall otherwise direct. Have we (that is, Congress) a
right to extend this exception? I believe not. If the Constitution has
invested all executive power in the President, I venture to assert
that the Legislature has no right to diminish or modify his executive
authority. The question now resolves itself into this: Is the power of
displacing an executive power? I conceive that if any power whatsoever
is in the Executive it is the power of appointing, overseeing, and
controlling those who execute the laws. If the Constitution had not
qualified the power of the President in appointing to office by
associating the Senate with him in that business, would it not be clear
that he would have the right by virtue of his executive power to make
such appointment? Should we be authorized in defiance of that clause
in the Constitution, "The executive power shall be vested in the
President," to unite the Senate with the President in the appointment
to office? I conceive not. If it is admitted that we should not be
authorized to do this, I think it may be disputed whether we have a
right to associate them in removing persons from office, the one power
being as much of an executive nature as the other; and the first one is
authorized by being excepted out of the general rule established by the
Constitution in these words: "The executive power shall be vested in the
President."
The question, thus ably and exhaustively argued, was decided by the
House of Representatives, by a vote of 34 to 20, in favor of the
principle that the executive power of removal is vested by the
Constitution in the Executive, and in the Senate by the casting vote
of the Vice-President.
The question has often been raised in subsequent times of high
excitement, and the practice of the Government has, nevertheless,
conformed in all cases to the decision thus early made.
The question was revived during the Administration of President Jackson,
who made, as is well recollected, a very large number of removals, which
were made an occasion of close and rigorous scrutiny and remonstrance.
The subject was long and earnestly debated in the Senate, and the early
construction of the Constitution was, nevertheless, freely accepted as
binding and conclusive upon Congress.
The question came before the Supreme Court of the United States in
January, 1839, _ex parte_ Hennen. It was declared by the court on that
occasion that the 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 the 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 a 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 Departments of
State, War, and Treasury, in the year 1789, provision was made for the
appointment of a subordinate officer by the head of the Department, who
should have charge of the records, books, and papers appertaining to the
office when the head of the Department should be removed from office
by the President of the United States. When the Navy Department was
established, in the year 1798, provision was 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 of the President," as is done with respect to the
heads of the other Departments, yet there can be no doubt that he holds
his office with 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 is by the
President and Senate. (13 Peters, p. 139.)
Our most distinguished and accepted commentators upon the Constitution
concur in the construction thus early given by Congress, and thus
sanctioned by the Supreme Court. After a full analysis of the
Congressional debate to which I have referred, Mr. Justice Story comes
to this conclusion:
After a most animated discussion, the vote finally taken in the House
of Representatives was affirmative of the power of removal in the
President, without any cooperation of the Senate, by the vote of 34
members against 20. In the Senate the clause in the bill affirming the
power was carried by the casting vote of the Vice-President. 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 have 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.
The commentator adds:
Nor is this general acquiescence and silence without a satisfactory
explanation.
Chancellor Kent's remarks on the subject are as follows:
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 nowhere 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.
The words of the act [establishing the Treasury Department] are: "And
whenever the same 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." This amounted to a legislative construction of the
Constitution, and it has ever since been acquiesced in and acted upon
as a decisive authority in the case. It applies equally to every other
officer of the Government appointed by the President, whose term of
duration is not specially declared. It is supported by the weighty
reason that the subordinate officers in the executive department ought
to hold at the pleasure of the head of the department, because he is
invested generally with the executive authority, and the participation
in that authority by the Senate was an exception to a general principle
and ought to be taken strictly. The President is the great responsible
officer for the faithful execution of the law, and the power of removal
was incidental to that duty, and might often be requisite to fulfill it.
Thus has the important question presented by this bill been settled, in
the language of the late Daniel Webster (who, while dissenting from it,
admitted that it was settled), by construction, settled by precedent,
settled by the practice of the Government, and settled by statute. The
events of the last war furnished a practical confirmation of the wisdom
of the Constitution as it has hitherto been maintained in many of its
parts, including that which is now the subject of consideration. When
the war broke out, rebel enemies, traitors, abettors, and sympathizers
were found in every Department of the Government, as well in the civil
service as in the land and naval military service. They were found in
Congress and among the keepers of the Capitol; in foreign missions; in
each and all the Executive Departments; in the judicial service; in the
post-office, and among the agents for conducting Indian affairs. Upon
probable suspicion they were promptly displaced by my predecessor, so
far as they held their offices under executive authority, and their
duties were confided to new and loyal successors. No complaints against
that power or doubts of its wisdom were entertained in any quarter. I
sincerely trust and believe that no such civil war is likely to occur
again. I can not doubt, however, that in whatever form and on whatever
occasion sedition can raise an effort to hinder or embarrass or defeat
the legitimate action of this Government, whether by preventing the
collection of revenue, or disturbing the public peace, or separating the
States, or betraying the country to a foreign enemy, the power of
removal from office by the Executive, as it has heretofore existed and
been practiced, will be found indispensable.
Under these circumstances, as a depositary of the executive authority of
the nation, I do not feel at liberty to unite with Congress in reversing
it by giving my approval to the bill. At the early day when this
question was settled, and, indeed, at the several periods when it has
subsequently been agitated, the success of the Constitution of the
United States, as a new and peculiar system of free representative
government, was held doubtful in other countries, and was even a subject
of patriotic apprehension among the American people themselves. A trial
of nearly eighty years, through the vicissitudes of foreign conflicts
and of civil war, is confidently regarded as having extinguished all
such doubts and apprehensions for the future. During that eighty years
the people of the United States have enjoyed a measure of security,
peace, prosperity, and happiness never surpassed by any nation. It can
not be doubted that the triumphant success of the Constitution is due
to the wonderful wisdom with which the functions of government were
distributed between the three principal departments--the legislative,
the executive, and the judicial--and to the fidelity with which each
has confined itself or been confined by the general voice of the nation
within its peculiar and proper sphere. While a just, proper, and
watchful jealousy of executive power constantly prevails, as it ought
ever to prevail, yet it is equally true that an efficient Executive,
capable, in the language of the oath prescribed to the President, of
executing the laws and, within the sphere of executive action, of
preserving, protecting, and defending the Constitution of the United
States, is an indispensable security for tranquillity at home and peace,
honor, and safety abroad. Governments have been erected in many
countries upon our model. If one or many of them have thus far failed in
fully securing to their people the benefits which we have derived from
our system, it may be confidently asserted that their misfortune has
resulted from their unfortunate failure to maintain the integrity of
each of the three great departments while preserving harmony among
them all.
Having at an early period accepted the Constitution in regard to the
Executive office in the sense in which it was interpreted with the
concurrence of its founders, I have found no sufficient grounds in the
arguments now opposed to that construction or in any assumed necessity
of the times for changing those opinions. For these reasons I return
the bill to the Senate, in which House it originated, for the further
consideration of Congress which the Constitution prescribes. Insomuch as
the several parts of the bill which I have not considered are matters
chiefly of detail and are based altogether upon the theory of the
Constitution from which I am obliged to dissent, I have not thought
it necessary to examine them with a view to make them an occasion of
distinct and special objections.
Experience, I think, has shown that it is the easiest, as it is
also the most attractive, of studies to frame constitutions for the
self-government of free states and nations. But I think experience has
equally shown that it is the most difficult of all political labors to
preserve and maintain such free constitutions of self-government when
once happily established. I know no other way in which they can be
preserved and maintained except by a constant adherence to them through
the various vicissitudes of national existence, with such adaptations
as may become necessary, always to be effected, however, through the
agencies and in the forms prescribed in the original constitutions
themselves.
Whenever administration fails or seems to fail in securing any of the
great ends for which republican government is established, the proper
course seems to be to renew the original spirit and forms of the
Constitution itself.