Part 3

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.