The question discussed involved distinctly and solely the independent
power of the President under the Constitution to remove an officer
appointed by him by and with the advice of the Senate. The discussion
arose upon a bill then before the Congress, providing for the
organization of the State Department, which contained a provision that
the head of the department to be created should be removable from
office by the President. This was opposed by a considerable number on
the ground that as the Senate coöperated in the appointment, it should
also be consulted in the matter of removal; it was urged by others that
the power of removal in such cases was already vested in the President
by the Constitution, and that the provision was therefore unnecessary;
and it was also contended that the question whether the Constitution
permitted such removal or not should be left untouched by legislative
action, and be determined by the courts.
Those insisting upon retaining in the bill the clause permitting
removal by the President alone, claimed that such legislation would
remove all doubt on the subject, though they asserted that the absolute
investiture of all executive power in the President, reinforced by
the constitutional command that he should take care that the laws be
faithfully executed, justified their position that the power already
existed, especially in the absence of any adverse expression in the
Constitution. They also insisted that the removal of subordinate
officers was an act so executive in its character, and so intimately
related to the faithful execution of the laws, that it was clearly
among the President’s constitutional prerogatives, and that if it was
not sufficiently declared in the Constitution, the omission should be
supplied by the legislation proposed.
In support of these positions it was said that the participation of the
Senate in the removal of executive officers would be a dangerous step
toward breaking down the partitions between the different departments
of the Government which had been carefully erected, and were regarded
by every statesman of that time as absolutely essential to our national
existence; and stress was laid upon the unhappy condition that would
arise in case a removal desired by the President should be refused
by the Senate, and he thus should be left, still charged with the
responsibility of the faithful execution of the laws, while deprived
of the loyalty and constancy of his subordinates and assistants, who,
if resentful of his efforts for their removal, would lack devotion
to his work, and who, having learned to rely upon another branch
of the Government for their retention, would be invited to defiant
insubordination.
At the time of this discussion the proceedings of the Senate took
place behind closed doors, and its debates were not published, but its
determinations upon such questions as came before it were made public.
The proceedings of the other branch of the Congress, however, were
open, and we are permitted through their publication to follow the very
interesting discussion of the question referred to in the House of
Representatives.
The membership of that body included a number of those who had been
members of the Constitutional Convention, and who, fresh from its
deliberations, were necessarily somewhat familiar with its purposes and
intent. Mr. Madison was there, who had as much to do as any other man
with the inauguration of the convention and its successful conclusion.
He was not only especially prominent in its deliberations, but
increased his familiarity with its pervading spirit and disposition by
keeping a careful record of its proceedings. In speaking of his reasons
for keeping this record he says:
The curiosity I had felt during my researches into the history
of the most distinguished confederacies, particularly those
of antiquity, and the deficiency I found in the means of
satisfying it, more especially in what related to the process,
the principles, the reasons and the anticipations which
prevailed in the formation of them, determined me to preserve
as far as I could an exact account of what might pass in the
convention while executing its trust, with the magnitude of
which I was duly impressed, as I was by the gratification
promised to future curiosity, by an authentic exhibition of
the objects, the opinions and the reasonings from which a new
system of government was to receive its peculiar structure
and organization. Nor was I unaware of the value of such a
contribution to the fund of materials for the history of a
Constitution on which would be staked the happiness of a
people great in its infancy and possibly the cause of liberty
throughout the world.
This important debate also gains great significance from the fact that
it occurred within two years after the completion of the Constitution,
and before political rancor or the temptations of partizan zeal had
intervened to vex our congressional counsels.
It must be conceded, I think, that all the accompanying circumstances
gave tremendous weight and authority to this first legislative
construction of the Constitution in the first session of the first
House of Representatives, and that these circumstances fully warranted
Mr. Madison’s declaration during the debate:
I feel the importance of the question, and know that our
decision will involve the decision of all similar cases. 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.
The discussion developed the fact that from the first a decided
majority were of the opinion that the Executive should have power of
independent removal, whether already derived from the Constitution
or to be conferred by supplementary legislation. It will be recalled
that the debate arose upon the clause in a pending bill providing that
the officer therein named should “be removable by the President,”
and that some of the members of the House, holding that such power
of removal was plainly granted to the Constitution, insisted that it
would be useless and improper to assume to confer it by legislative
enactment. Though a motion to strike from the bill the clause objected
to had been negatived by a large majority, it was afterward proposed,
in deference to the opinions of those who suggested that the House
should go no further than to give a legislative construction to the
Constitution in favor of executive removal, that in lieu of the words
contained in the bill, indicating a grant of the power, there should
be inserted a provision for a new appointment in case of a vacancy
occurring in the following manner:
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 universally acknowledged to be a distinct and unequivocal
declaration that, under the Constitution, the right of removal was
conferred upon the President; and those supporting that proposition
voted in favor of the change, which was adopted by a decisive majority.
The bill thus completed was sent to the Senate, where, if there was
opposition to it on the ground that it contained a provision in
derogation of senatorial right, it did not avail; for the bill was
passed by that body, though grudgingly, and, as has been disclosed,
only by the vote of the Vice-President, upon an equal division of the
Senate. It may not be amiss to mention, as adding significance to the
concurrence of the House and the Senate in the meaning and effect of
the clause pertaining to removal as embodied in this bill, that during
that same session two other bills creating the Treasury Department
and the War Department, containing precisely the same provision, were
passed by both Houses.
I hope I shall be deemed fully justified in detailing at some length
the circumstances that led up to a legislative construction of the
Constitution, as authoritative as any surroundings could possibly make
it, in favor of the constitutional right of the President to remove
Federal officials without the participation or interference of the
Senate.
This was in 1789. In 1886, ninety-seven years afterward, this question
was again raised in a sharp contention between the Senate and the
President. In the meantime, as was quite natural perhaps, partizanship
had grown more pronounced and bitter, and it was at that particular
time by no means softened by the fact that the party that had become
habituated to power by twenty-four years of substantial control of the
Government, was obliged, on the 4th of March, 1885, to make way in the
executive office for a President elected by the opposite party. He
came into office fully pledged to the letter of Civil Service reform;
and passing beyond the letter of the law on that subject, he had said:
There is a class of government positions which are not within
the letter of the Civil Service statute, but which are so
disconnected with the policy of an administration, that the
removal therefrom of present incumbents, in my opinion, should
not be made during the terms for which they were appointed,
solely on partizan grounds, and for the purpose of putting
in their places those who are in political accord with the
appointing power.
The meaning of this statement is, that while, among the officers not
affected by the Civil Service law, there are those whose duties are so
related to the enforcement of the political policy of an administration
that they should be in full accord with it, there are others whose
duties are not so related, and who simply perform executive work; and
these, though beyond the protection of Civil Service legislation,
should not be removed merely for the purpose of rewarding the party
friends of the President, by putting them in the positions thus made
vacant. An adherence to this rule, based upon the spirit instead of
the letter of Civil Service reform, I believe established a precedent,
which has since operated to check wholesale removals solely for
political reasons.
The declaration which I have quoted was, however, immediately followed
by an important qualification, in these terms:
But many men holding such positions have forfeited all just
claim to retention, because they have used their places for
party purposes, in disregard of their duty to the people;
and because, instead of being decent public servants, they
have proved themselves offensive partizans and unscrupulous
manipulators of local party management.
These pledges were not made without a full appreciation of the
difficulties and perplexities that would follow in their train. It
was anticipated that party associates would expect, notwithstanding
Executive pledges made in advance, that there would be a speedy and
liberal distribution among them of the offices from which they had been
inexorably excluded for nearly a quarter of a century. It was plainly
seen that many party friends would be disappointed, that personal
friends would be alienated, and that the charge of ingratitude, the
most distressing and painful of all accusations, would find abundant
voice. Nor were the difficulties overlooked that would sometimes
accompany a consistent and just attempt to determine the cases in
which incumbents in office had forfeited their claim to retention. That
such cases were numerous, no one with the slightest claim to sincerity
could for a moment deny.
With all these things in full view, and with an alternative of escape
in sight through an evasion of pledges, it was stubbornly determined
by the new Executive that the practical enforcement of the principle
involved was worth all the sacrifices which were anticipated. And while
it was not expected that the Senate, which was the only stronghold left
to the party politically opposed to the President, would contribute an
ugly dispute to a situation already sufficiently troublesome, I am in a
position to say that even such a contingency, if early made manifest,
would have been contemplated with all possible fortitude.
The Tenure of Office act, it will be remembered, was passed in 1867 for
the express purpose of preventing removals from office by President
Johnson, between whom and the Congress a quarrel at that time raged, so
bitter that it was regarded by sober and thoughtful men as a national
affliction, if not a scandal.
An amusing story is told of a legislator who, endeavoring to persuade
a friend and colleague to aid him in the passage of a certain measure
in which he was personally interested, met the remark that his bill
was unconstitutional with the exclamation, “What does the Constitution
amount to between friends?” It would be unseemly to suggest that in the
heat of strife the majority in Congress had deliberately determined to
pass an unconstitutional law, but they evidently had reached the point
where they considered that what seemed to them the public interest and
safety justified them, whatever the risk might be, in setting aside
the congressional construction given to the Constitution seventy-eight
years before.
The law passed in 1867 was exceedingly radical, and in effect
distinctly purported to confer upon the Senate the power of preventing
the removal of officers without the consent of that body. It was
provided that during a recess of the Senate an officer might be
suspended only in case it was shown by evidence satisfactory to the
President, that the incumbent was guilty of misconduct in office or
crime, or when for any reason he should become incapable or legally
disqualified to perform his duties; and that within twenty days after
the beginning of the next session of the Senate, the President should
report to that body such suspension, with the evidence and reasons for
his action in the case, and the name of the person designated by the
President to perform temporarily the duties of the office. Then follows
this provision:
And if the Senate shall concur in such suspension and advise
and consent to the removal of such officer, they shall so
certify to the President, who may thereupon remove said
officer, and by and with the advice and consent of the Senate
appoint another person to such office. But if the Senate shall
refuse to concur in such suspension, such officer so suspended
shall forthwith resume the functions of his office.
On the 5th of April, 1869, a month and a day after President Johnson
was succeeded in the Presidency by General Grant, that part of the
act of 1867 above referred to, having answered the purpose for which
it was passed, was repealed, and other legislation was enacted in its
place. It was provided in the new statute that the President might “in
his discretion,” during the recess of that body, suspend officials
until the end of the next session of the Senate, and designate suitable
persons to perform the duties of such suspended officer in the
meantime; and that such designated persons should be subject to removal
in the discretion of the President by the designation of others. The
following, in regard to the effect of such suspension, was inserted in
lieu of the provision on that subject in the law of 1867 which I have
quoted:
And it shall be the duty of the President within thirty days
after the commencement of each session of the Senate, except
for any office which in his opinion ought not to be filled, to
nominate persons to fill all vacancies in office which existed
at the meeting of the Senate, whether temporarily filled or
not, and also in the place of all officers suspended; and
if the Senate, during such session, shall refuse to advise
and consent to an appointment in the place of any suspended
officer, then, and not otherwise, the President shall nominate
another person as soon as practicable to said session of the
Senate for said office.
This was the condition of the so-called tenure of office legislation
when a Democratic President was inaugurated and placed in expected
coöperation with a Republican majority in the Senate--well drilled,
well organized, with partizanship enough at least to insure against
indifference to party advantage, and perhaps with here and there a
trace of post-election irritation.
Whatever may be said as to the constitutionality of the Tenure of
Office laws of 1867 and 1869, certainly the latter statute did not
seem, in outside appearance, to be charged with explosive material
that endangered Executive prerogative. It grew out of a bill for
the absolute and unconditional repeal of the law of 1867 relating
to removals and suspensions. This bill originated in the House of
Representatives, and passed that body so nearly unanimously that
only sixteen votes were recorded against it. In the Senate, however,
amendments were proposed, which being rejected by the House, a
committee of conference was appointed to adjust, by compromise if
possible, the controversy between the two bodies. This resulted in an
agreement by the committee upon the provisions of the law of 1869,
as a settlement of the difficulty. In the debate in the House of
Representatives on the report of the committee, great uncertainty and
differences of opinion were developed as to its meaning and effect.
Even the House conferees differed in their explanation of it. Members
were assured that the proposed modifications of the law of 1867, if
adopted, would amount to its complete repeal; and it was also asserted
with equal confidence that some of its objectionable limitations upon
executive authority would still remain in force. In this state of
confusion and doubt the House of Representatives, which a few days
before had passed a measure for unconditional repeal, with only sixteen
votes against it, adopted the report of the conference committee with
sixty-seven votes in the negative.
So far as removals following suspensions are concerned, the language of
the law of 1869 certainly seems to justify the understanding that in
this particular it virtually repealed the existing statute.
The provision permitting the President to suspend only on certain
specified grounds was so changed as to allow him to make such
suspensions “in his discretion.” The requirements that the President
should report to the Senate “the evidence and reasons for his action in
the case,” and making the advice and consent of the Senate necessary
to the removal of a suspended officer, were entirely eliminated; and
in lieu of the provision in the law of 1867 that “if the Senate shall
refuse to concur in such suspension, such officer so suspended shall
forthwith resume the functions of his office,” the law of 1869, after
requiring the President to send to the Senate nominations to fill the
place of officers who had been “in his discretion” suspended, declared
“that if the Senate, during such session, shall refuse to advise and
consent to an appointment in the place of any suspended officer,”--that
is, shall refuse to confirm the person appointed by the President in
place of the officer suspended,--not that “such officer so suspended
shall resume the functions of his office,” but that “then, and not
otherwise, the President shall nominate another person as soon as
practicable to said session of the Senate for said office.”
It seems to me that the gist of the whole matter is contained in a
comparison of these two provisions. Under the law of 1867 the incumbent
is only conditionally suspended, still having the right to resume his
office in case the Senate refuses to concur in the suspension; but
under the law of 1869 the Senate had no concern with the suspension
of the incumbent, nor with the discretion vested in the President in
reference thereto by the express language of the statute; and the
suspended incumbent was beyond official resuscitation. Instead of the
least intimation that in any event he might “resume the functions of
his office,” as provided in the law of 1867, it is especially declared
that in case the Senate shall refuse to advise and consent to the
appointment of the particular person nominated by the President in
place of the suspended official, he shall nominate another person
to the Senate for such office. Thus the party suspended seems to
be eliminated from consideration, the Senate is relegated to its
constitutional rights of confirming or rejecting nominations as it sees
fit, and the President is reinstated in his undoubted constitutional
power of removal through the form of suspension.
In addition to what is apparent from a comparison of these two
statutes, it may not be improper to glance at certain phases of
executive and senatorial action since the passage of the law of 1869
as bearing upon the theory that, so far as it dealt with suspensions
and their effect, if it did not amount to a repeal of the law of 1867,
it at least extinguished all its harmful vitality as a limitation of
executive prerogative. It has been stated, apparently by authority,
that President Grant within seven weeks after his inauguration on the
4th of March, 1869, sent to the Senate six hundred and eighty cases of
removals or suspensions, all of which I assume were entirely proper and
justifiable. I cannot tell how many of the cases thus submitted to the
Senate were suspensions, nor how many of them purported to be removals;
nor do I know how many nominations of new officers accompanying them
were confirmed. It appears that ninety-seven of them were withdrawn
before they were acted upon by the Senate; and inasmuch as the law of
1867 was in force during four of the seven weeks within which these
removals and suspensions were submitted, it is barely possible that
these withdrawals were made during the four weeks when the law of 1867
was operative, to await a more convenient season under the law of
1869. Attention should be here called, however, to the dissatisfaction
of President Grant, early in his incumbency, with the complexion of
the situation, even under the repealing and amendatory law of 1869.
In his first annual message to the Congress in December, 1869, he
complained of that statute as “being inconsistent with a faithful
and efficient administration of the Government,” and recommended its
repeal. Perhaps he was led to apprehend that the Senate would claim
under its provisions the power to prevent the President from putting
out of office an undesirable official by suspension. This is indicated
by the following sentence in his message: “What faith can an Executive
put in officials forced upon him, and those, too, whom he has suspended
for reason?” Or it may be possible that he did not then appreciate
how accommodatingly the law might be construed or enforced when the
President and Senate were in political accord. However these things may
be, it is important to observe, in considering the light in which the
law of 1869 came to be regarded by both the Executive and the Senate,
that President Grant did not deem it necessary afterward to renew his
recommendation for its repeal, and that at no time since its enactment
has its existence been permitted to embarrass executive action prior to
the inauguration of a President politically opposed to the majority in
the Senate.
The review which I have thus made of the creation of our national
Executive office, and of certain events and incidents which interpreted
its powers and functions, leads me now to a detailed account of the
incident mentioned by me at the beginning as related to the general
subject under discussion and in which I was personally concerned.
But before proceeding further, I desire to say that any allusion I
may have made, or may hereafter make, recognizing the existence of
partizanship in certain quarters does not arise from a spirit of
complaint or condemnation. I intend no more by such allusions than
to explain and illustrate the matters with which I have to deal by
surrounding conditions and circumstances. I fully appreciate the fact
that partizanship follows party organization, that it is apt to be
unduly developed in all parties, and that it often hampers the best
aspirations and purposes of public life; but I hope I have reached
a condition when I can recall such adverse partizanship as may have
entered into past conflicts and perplexities, without misleading
irritation or prejudice.