CHAPTER XI THE NATIONAL ADMINISTRATION 79. The President's Power of Removal * WHILE giving the President power to appoint officers by and with the advice and consent of the Senate, the Constitution makes no express provision as to how undesirable officers should be removed. By practical experience, however, it has been found that no executive can assume responsibility for an administration unless he can keep the subordinate officials up to a high standard of efficiency through the disciplinary power of removal. That this power is possessed by the President under the Constitution is the theme of the following decision by the Supreme Court. the case. The facts as they appear in the findings of the Court of Claims The facts in are that the appellant was nominated on July 17, 1890, to be one of the general appraisers of merchandise under the act of June 10, 1890, chapter 407, 26 Stat. 131, and that nomination was consented to on the following day by the Senate, and the appellant was thereupon commissioned to be such general appraiser of merchandise. He accepted that office and took the oath required on July 24, 1890, and remained in such office and was paid the salary attaching thereto up to May 15, 1899. On May 3 of that year he received the following communication from the President: EXECUTIVE MANSION, SIR: You are hereby removed from the office of general appraiser of merchandise, to take effect upon the appointment and qualification of your successor. WILLIAM MCKINLEY. The statute creating the office. Has the President a general unrestricted power to remove? The enumeration of certain causes does not restrict the general power. The appellant never resigned his office nor acquiesced in any attempted removal therefrom, and he was never notified or informed of any charges made against him, either of inefficiency, neglect of duty or malfeasance in office, and he knows of no cause for his removal from the office having been ascertained or assigned by the President. Mr. Justice Peckham, after making the foregoing statement delivered the opinion of the court. The office of general appraiser of merchandise was created by the twelfth section of the act of Congress approved June 10, 1890. The material portion of that section reads as follows: SEC. 12. That there shall be appointed by the President by and with the advice and consent of the Senate, nine general appraisers of merchandise, ... They 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. 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, 425. It must be presumed that the President did not make the removal for any cause assigned in the statute, because there was given to the officer no notice or opportunity to defend. The question then arises, can the President exercise the power of removal for any other causes than those mentioned in the statute; in other words, is he restricted to a removal for those causes alone, or can he exercise his general power of removal without such restriction? 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 therefore by the statute pro hibited from any removal except 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 that subject. It does not exist by virtue of the grant, but it inheres in the right to appoint, unless limited by the Constitution or statute. It requires plain language to take it away. Did Congress by the use of language providing for removal for certain causes thereby provide that the right could only be exercised in the specific causes? If so, see what a difference in the tenure of office is effected as to this office, from that existing generally in this country. The tenure of the judicial officers of the United States is provided for by the Constitution but with that exception no civil officer has ever held office by a life tenure since the foundation of the government. The uniform practice in cases of To construe the statute as contended for by the appellant is to give an appraiser of merchandise the right to hold that office during his life or until he shall be found guilty of some act specified in the removal. statute. If this be true, a complete revolution in the general tenure of office is effected, by implication, with regard to this particular office. We think it quite inadmissible to attribute an intention on the part of Congress to make such an extraordinary change in the usual rule governing the tenure of office and one which is to be applied to this particular office only, without stating such intention in plain and explicit language, instead of leaving it to be implied from doubtful inferences. We can see no reason for such action by Congress with reference to this office or the duties connected with it. President In making removals from office it must be assumed that the The President acts with reference to his constitutional duty to take care that the laws are faithfully executed, and we think it would be a mistaken view to hold that mere specification in the statute of some causes of removal thereby excluded the right of the President presumed to act constitutionally. The peculiar position of the State Department. to remove for any other reason which he, acting with a due sense of his official responsibility, should think sufficient. It is true that, under this construction, it is possible that officers may be removed for causes unconnected with the proper administration of the office. That is the case with most of the other officers in the government. The only restraint in cases such as this must consist in the responsibility of the President under his oath of office, to so act as shall be for the general benefit and welfare. 80. The Executive Departments and Congress * Whatever may be the theory about the separation of powers and the independence of the executive, it remains a fact that the executive departments and their principal officers " are the creatures of the laws of Congress, exercising only such powers and performing only such duties as those laws prescribe." The relation of the departments to Congress is thus described by Senator Spooner in a speech delivered in the Senate. 1 I agree entirely with what the Senator from Colorado says: "That we are in the habit of passing resolutions directing the heads of all the departments except that is my own qualification except the State Department - the Secretary of State to answer interrogatories and to send to the Senate information indicated in such resolutions." Often I have, where a resolution was in the form "requested," suggested that the word "requested" be stricken out and that the word "directed" be substituted, but I have not known an instance since I have been a member of the Senate in which the Senate has directed the Secretary of State to forward to the Senate copies of diplomatic correspondence, instructions to ministers or to agents appointed by the President to negotiate treaties. It has always been, so far as my memory goes, in form a "request" to the President to transmit, if not, in his judgment, incompatible with the public interest. And there is a reason, Mr. President, for this distinction in the form of directing the Department of State and other Departments. No one will 1 See above, p. 178. dispute for a moment that the conduct of our foreign affairs is, under the Constitution, entirely in the hands and under the control, of the President, and there never has been written a book on the Constitution Story, Rawle, Kent, Pomeroy- any book upon the subject which has not emphasized the fact, which is apparent to thoughtful men, that the conduct of our foreign relations, instructions by the President to ministers and other diplomatic agents, require and involve in the interests of the country, more or less of secrecy. The other Departments of the Government perform very many duties imposed primarily by Congress, dealing entirely with our domestic affairs, and therefore the distinction which, as I understand, has always been observed, and which I think ought to be observed, between the other Departments of the Government and the Department of State, so far as it relates to instructions given. to and correspondence with diplomatic agents of the United States, ambassadors, ministers, and senators. Distinction between the Department of State and other Departments defines the duties of officers. The Cabinet is not the mere retinue of the President; the Cabi- Congress net taken as a body is not merely the official family of the President. We impose duties every day during the session of Congress Cabinet by law upon the Cabinet officers which it is beyond the power of the President by any instruction of his to pretermit obedience to. The Constitution recognizes Cabinet officers. It deals with them or characterizes them as "Heads of Departments." It authorizes us and when I say us I mean Congress · to vest in them the appointment of inferior officers; and in the discharge of that function they are as independent of the order or control of the President, theoretically at least, as if they were entirely independent of the President in other respects. The statute books are full of duties imposed and orders made by the Congress to be executed by this member of the Cabinet, or that member, or the other. But I draw the line only as to the Secretary of State, so far as his functions relate to diplomatic correspondence and to that domain of duty in which he acts under the Constitution, and can act under the Constitution only by order of the President, and cannot act by order of the Congress. |