52 BRANDEIS, J., dissenting. tution had vested in the President uncontrollable power over removal. It was because the spoils system held sway. The historical data submitted present a legislative practice, established by concurrent affirmative action of Congress and the President, to make consent of the Senate a condition of removal from statutory inferior, civil, executive offices to which the appointment is made for a fixed term by the President with such consent. They show that the practice has existed, without interruption, continuously for the last fifty-eight years; that, throughout this period, it has governed a great majority of all such offices; that the legislation applying the removal clause specifically to the office of postmaster was enacted more than half a century ago; and that recently the practice has, with the President's approval, been extended to several newly created offices. The data show further, that the insertion of the removal clause in acts creating inferior civil offices with fixed tenures is part of the broader legislative practice, which has prevailed since the formation of our Government, to restrict or regulate in many ways both removal from and nomination to such offices. A persistent legislative practice which involves a delimitation of the respective powers of Congress and the President, and which has been so established and maintained, should be deemed tantamount to judicial construction, in the absence of any decision by any court to the contrary. United States v. Midwest Oil Co., 236 U. S. 459, 469. The persuasive effect of this legislative practice is strengthened by the fact that no instance has been found, even in the earlier period of our history, of concurrent affirmative action of Congress and the President which is inconsistent with the legislative practice of the last fifty-eight years to impose the removal clause. Nor has any instance been found of action by Congress which in BRANDEIS, J., dissenting. 272 U.S. volves recognition in any other way of the alleged uncontrollable executive power to remove an inferior civil officer. The action taken by Congress in 1789 after the great debate does not present such an instance. The vote then taken did not involve a decision that the President had uncontrollable power. It did not involve a decision of the question whether Congress could confer upon the Senate the right, and impose upon it the duty, to participate in removals. It involved merely the decision that the Senate does not, in the absence of legislative grant thereof, have the right to share in the removal of an officer appointed with its consent; and that the President has, in the absence of restrictive legislation, the constitutional power of removal without such consent. Moreover, as Chief Justice Marshall recognized, the debate and the decision related to a high political office, not to inferior ones." 72 Nor does the debate show that the majority of those then in Congress thought that the President had the uncontrollable power of removal. The Senators divided equally in their votes. As to their individual views we lack knowledge; for the debate was secret. In the House only 24 of the 54 members voting took part in the debate. Of the 24, only 6 appear to have held the opinion that the President possessed the uncontrollable power of removal. The clause which involved a denial of the claim that the Senate had the constitutional right to participate in removals was adopted, so far as appears, by aid of the votes of others who believed it expedient for 71 Chief Justice Marshall said of the proceedings of 1789: "In organizing the departments of the executive, the question in what manner the high officers who filled them should be removable, came on to be discussed." 5 Marshall, Life of Washington, 196. 72 Of the ten Senators who had been members of the Constitutional Convention of 1787, four voted against the bill. A fifth, Bassett, changed sides during the debate. Maclay, Sketches of Debate, 110. 32 52 BRANDEIS, J., dissenting. Congress to confer the power of removal upon the President alone." This is indicated both by Madison's appeal for support 74 and by the action taken on Benson's motions." 73 The six who held that the Constitution vested a sole power of removal in the President were Baldwin, 1 Ann. Cong. 557-560; Benson, 1 ibid. 505-507; Boudinot, 1 ibid. 526-532; Clymer, 1 ibid. 489; Madison, 1 ibid. 546; Vining. 1 ibid. 585. Madison, at first, considered it subject to Congressional control. 1 Ann. Cong. 374375. Seven held that the power of removal was a subject for Congressional determination and that it was either expedient or inexpedient to grant it to the President alone. Hartley, 1 Ann. Cong. 585; Lawrence, 1 ibid. 583; Lee, 1 ibid. 523-526; Sedgwick, 1 ibid. 582-583; Sherman, 1 ibid. 491-492; Sylvester, 1 ibid. 560-563; Tucker, 1 ibid. 584-585. Five held that the power of removal was constitutionally vested in the President and Senate. Gerry, 1 Ann. Cong. 502; Livermore, 1 ibid. 477-479; Page, 1 ibid. 519-520; Stone, 1 ibid. 567; White, 1 ibid, 517. Two held that impeachment was the exclusive method of removal. Jackson, 1 Ann. Cong. 374, 529532; Smith, of South Carolina, 1 Ann. Cong. 457, 507-510. Three made desultory remarks, Goodhue, 1 Ann. Cong. 378, 533-534; Huntington, 1 Ann. Cong. 459; and Scott, 1 Ann. Cong. 532-533, which do not admit of definitive classification. Ames was only certain hat the Senate should not participate in removals, and did not differentiate between a power vested in the President by the Constitution and a power granted him by' the legislature. 1 Ann. Cong. 473-477, 538-543. He inclined, however, towards Madison's construction. 1 Works of Fisher Ames, 56. During the earlier debate upon the resolutions for the creation of Executive Departments, Bland had contended that the Senate shared in the power of removal. 1 Ann. Cong. 373-374. The conclusion that a majority of the members of the House did not hold the view that the Constitution vested the sole power of removal in the President was expressed by Senator Edmunds. 3 Impeachment of Andre Johnson, 84. It had been expressed twenty years earlier by Lockwood, J., of the Supreme Court of Illinois, in a case involving a similar question and decided adversely to Madison's contention. Field v. People, 2 Scamm. 79, 162–173. 74 Madison's plea for support was addressed not only to those who conceived the power of removal to be vested in the President, but also to those who believed that Congress had power to grant the authority to the President and that under the circumstances it was BRANDEIS, J., dissenting. 272 U.S. It is true that several Presidents have asserted that the Constitution conferred a power of removal uncontrollable expedient to confer such authority. After expressing his own views on the subject, he continued: "If this is the true construction of this instrument, the clause in the bill is nothing more than explanatory of the meaning of the Constitution, and therefore not liable to any particular objection on that account. If the Constitution is silent, and it is a power the Legislature have a right to confer, it will appear to the world, if we strike out the clause, as if we doubted the propriety of vesting it in the President of the United States. I therefore think it best to retain it in the bill." 1 Ann. Cong. 464. 75 The initial vote of 34 to 20, defeating a motion to strike out the words "to be removable by the President," was indecisive save as a determination that the Senate had no constitutional right to share in removals. Madison, June 22, 1789, 1 Ann. Cong. 578-579. "Indeed, the express grant of the power to the president rather implied a right in the legislature to give or withhold it at their discretion." 5 Marshall, Life of Washington, 200. Benson, therefore, proposed to remove this ambiguity by striking out the words "to be removable by the President," and inserting "whenever the said principal officer shall be removed from office by the President of the United States," thus implying the existence of the power in the President irrespective of legislative grant. The motions were successful and their adoption has been generally interpreted as a législative declaration of Benson's purpose. Such interpretation, although oft repeated, is not warranted by the facts of record. The individual votes on these two motions are given. An examination of the votes of those whose opinions are also on record shows that Benson's first motion succeeded only as a result of coalition between those who accepted Madison's views and those who considered removal subject to Congressional control but deemed it advisable to vest the power in the President. The vote on Benson's second motion to strike out the words "to be removable by the President" brought forth a different alignment. The minority now comprised those who, though they believed the grant of power to be expedient, did not desire to imply the existence of a power in the President beyond legislative control. Whereas the majority exhibits a combination of diverse views those who held to Madison's construction, those who initially had sought to strike out the clause on the ground that the Senate should share in removals, and those who deemed it unwise to make any legislative declaration of the Constitution. Thus none 52 BRANDEIS, J., dissenting. by Congress." But of the many statutes enacted since the foundation of our Government which in express terms controlled the power of removal, either by the clause here in question or otherwise, only two were met with a veto: The Tenure of Office Act of 1867, which related to high political officers among others, and the Budget Act of 1920, which denied to the President any participation in the removal of the Comptroller and Assistant Comptroller. One was passed over the President's veto; the other was approved by the succeeding President. It is true also that several Presidents have at times insisted that for the exercise of their power they were not accountable to the Senate." But even these Presidents of the three votes in the House revealed its sense upon the question whether the Constitution vested an uncontrollable power of removal in the President. On the contrary the votes on Benson's amendments reveal that the success of this endeavor was due to the strategy of dividing the opposition and not to unanimity of constitutional conceptions. 70 President's Jackson, 3 Messages and Papers of the Presidents, 133; Johnson, 6 ibid. 492; Cleveland, 8 ibid. 379; Wilson, 59 Cong. Rec. 8609. 77 On Feb. 2, 1835, the Senate adopted a resolution requesting the President to communicate to the Senate copies of the charges against Gideon Fitz, surveyor-general, in that such information was necessary for its constitutional action upon the nomination of his successor. 4 Ex. Journ. 465. On Feb. 10, 1835, President Jackson refused to comply with these alleged "unconstitutional demands." 4 Ex. Journ. 468. On Jan. 25, 1886, the Senate adopted a resolution directing the Attorney General to transmit copies of documents on file in the Department of Justice relating to the management of the office of district attorney for the southern district of Alabama. J. D. Burnett had been nominated to the office in place of G. M. Duskin suspended. 25 Ex. Journ. 294. On Feb. 1, 1886, a letter from the Attorney General was laid before the Senate refusing to accede with the request by direction of the President. On Mar. 1, 1886, President Cleveland in a message to the Senate denied the constitutional right of the Senate to demand such information. 8 Messages and Papers of the Presidents, 375. |