brief, which I was unable to do with respect to our substituted brief, until later. So that I claim no credit for having enlightened the learned Solicitor General on that subject.

The Solicitor General, however, in his discussion in his final brief does find a middle ground. But I want to say that, while, as I stated in our brief, I concur in the view that there is a middle ground, we do not concur on the particular middle ground which the Solicitor General has set up, and which he is trying to have this court adopt. Either the President had the power to remove this postmaster or he had not. Much of the brief, and in fact most of the brief, of the learned Solicitor General, is directed to what he thinks should be the legislative policy; not to the question really before the court, as we view it, relating to the constitutionality of this act. The middle ground on which we rely under the Constitution is that of "checks and balances."

When we come to the question of the constitutionality of the act, there are two issues:

First. Whether it contains in effect a prohibition of the removal by the President of a postmaster of the first second, or third class, without the advice and consent of the Senate. I take it, from the brief of counsel, there is no dispute upon that question.

The statute does prohibit any removal without it first having been submitted to the Senate. When I say "submitted to the Senate," I do not mean that it was necessary to send over a notice that he (the President) expected to and would remove or has removed this postmaster. The sending of the name of the appointee to succeed Mr. Myers would have been sufficient notice, and the confirmation of the appointee would have been sufficient. But that was not done. Mr. Myers' successor was not appointed. Myers had no chance to meet his accusers. He was convicted and removed without even a chance for a hearing, if your honors please! The whole procedure was arbitrary in the extreme. It was unheard of in the history of our country, except in an instance or two, one of which resulted in the impeachment of a President.

Second. If this section shall be construed to contain such prohibition, is the section constitutional?

The Constitution of the United States specifies whom the President may nominate. It specifies whom he may select for certain offices. It follows, then, with the provision standing out in bold type that all inferior officers may be provided for by Congress, and may be delegated either to the President, to the heads of departments, or to the courts.

When this power was delegated to Congress

Mr. Justice SUTHERLAND (interposing). That is, it says, to "the President alone;" the provision is to "the President alone"?

Mr. KING. It provides, either to the President alone, to the heads of departments, or to the courts. The officers, the appointment of whom are exclusively delegated to the President, are there specified.

In the outset let it be remembered that the powers of the President of the United States are enumerated powers. Prior to the meeting of the constitutional convention, all these powers now exercised with the consent of Congress, were in the States. But when the Constitutional Convention met, they decided upon having a

24049 S. Doc. 174, 69-2—11

head Executive. They delegated to him certain powers. Those powers are enumerated in the Constitution. And then it is provided that the appointment of inferior officers may be delegated to the President alone, to the courts of law, or to the heads of departments. What does that mean? Its meaning should be clear.

It has been decided by this court-I think unequivocally-that when these powers are delegated to the departments, Congress has the power to provide that removals may only be made by and with the consent of the Senate. Your honors will find the authority for that cited in our brief. It does not happen to be mentioned in the other briefs. It is the case cited on page 29 of our brief.

The CHIEF JUSTICE. You are referring now to your substituted brief?

Mr. KING. I am referring to my substituted brief. And, by the way, I will say that the court might forget the other brief, as we have practically everything in the substituted brief, with only one addition, as I remember it.

The CHIEF JUSTICE. Then, we will mark the other one "Not to be considered-just forgotten."

Mr. KING. Yes, your honors, "forgotten."

Mr. BECK. May I say the same with respect to the Government's brief? We filed a substitute brief, and it completely supplants the preceding brief.

Mr. KING. I am glad to hear the Solicitor General say that. In it he left out that statement to which I referred.

Mr. BECK. We have left out nothing. We have included everything, in substance, that was in the original brief.

Mr. KING. As to our substituted brief, we have added some able and pointed remarks by Mr. Justice Story, formerly of this court; otherwise no changes. The reply part of our brief takes up matters in appellee's substituted brief.

I now invite the attention of the court to a case (116 U. S. 483) in which it has adopted verbatim almost the entire decision of the Court of Claims. The opinion of this court closes by saying

We adopt these views and affirm the judgment of the Court of Claims, The Court of Claims had held in that case that where Congress delegated the power to the head of a department, Congress had the implied power to place the restriction of removal upon the head of that department, and to require that such removal must receive the consent of the Senate.

And the only difference between that case and this is that in that case the power was not delegated to the President, but to one of the executive heads of a department.

Mr. Justice HOLMES. Is that the case of United States v. Perkins that you refer to?

Mr. KING. Yes, your honor. This case is referred to pages 29-30 in our brief and is fully discussed in the briefs of both my colleague and myself.

But this power was delegated to the head of an executive department. It follows that it is within the same exception to the general rule relating to the power of the President to make appointments and removals. There is nothing in the Solicitor General's brief to indicate why there should be a distinction, so far as I can reason it out,

between a delegation of power to the head of an executive department and the delegating of power to the President. In the first instance, the whole delegation is vested in Congress, as it was before we had a Constitution; and the Constitution enumerates and specifies the particular offices to which the President might appoint, and makes the exception that the inferior officers shall be under the control of Congress.

With these few remarks, I believe I have stated the issues in this case, and will now leave the rest of the discussion in the opening to Senator Pepper, reserving the rest of my time for the closing.

CLOSING ARGUMENT OF HON. WILL R. KING, ON BEHALF OF APPELLANT1

The CHIEF JUSTICE. Mr. King, you may proceed.

Mr. KING. If the court please; I recognize that while I have about 26 minutes left, it does not necessarily follow that I must consume the whole time.

The CHIEF JUSTICE. I am very glad some counsel appreciates that. [Laughter.]

Mr. KING. I have listened with intense interest to the remarks of the learned Solicitor General. The difference between us seems to be that, while possibly we might adopt the same premises, we do not reach the same conclusion.

In the outset of our Government, we had Confederated States of America, if I may be permitted to express it in that way. Everything up to that time was within the power and within the jurisdiction of the Confederated States of that time. They had fought the Revolution with that power. They had won. Incompetent as some at that time erroneously thought them in the way of legislative power, we must concede that they were successful.

After some hesitation, and much deliberation, they held a Confederation Conference or, better termed, a Constitutional Convention-commonly and finally known as the Constitutional Convention of that time.

Up to that date there was no power in any executive as a President, a head executive, or otherwise, either to appoint or remove any official. Every power that the head executive exercised from that time on was received from and delegated by that convention.

Then what occurred? We find, if your honors please, one of the greatest debates that ever took place. Yes, one of the most interesting since the days when Xenophon, Clearchus, and others had their midnight session of oratory to provide a way" for the retreat of the 10,000 Greeks" and enable them to get back to safety. We had a constitutional convention at a time when the States were worried. Unlike the mercenary Greek expedition, with its final retreat, they were seeking a solution of new problems from the highest motives. They, too, wanted to make sure of their safety, as a nation, from threatened disaster. A system was accordingly provided whereby we could have a government, not only represented by the confederated States, but one in which we could have an Executive with some power, who would represent not only what we stood for at that particular time but, at the same time, not pos

1 This oral argument was made following the oral argument of Mr. Solicitor Beck, p. 184.

sessed with the exclusive powers so common to executives of monarchial governments.

We have listened with intense interest to the discussion as presented by the Solicitor General in this case. We have listened with intense interest-from more than one standpoint-to his interpretation of the Federal Constitution respecting the points involved; but, as indicated in the able brief and argument presented by Senator Pepper, as amicus curiæ counsel, his discussion is a discussion of what might more properly be presented to the wisdom of Congress as what the solicitor may think should be in our Constitution and laws, instead of what is there.

Leading up to the consideration of the issues with which this honorable court is presented, we have two propositions: (1) What should be the Constitution of the United States; and (2) what is the Constitution of the United States-what is contained therein respecting the question here presented?

As presented by the Solicitor General, he is of the view there should be certain powers granted to the President of the United States in that Constitution. Are they there? That is the question. We say, "No." All of that was threshed out in the Constitutional Convention, by Mr. Madison, and by others. Madison and his host finally lost. The sum and substance of it, if your honors please, is that, after long hours of debate; after days of debate, it was finally decided they would say nothing about what the prerogative of the President of the United States should be on this particular subject. They omitted it; they left it to "congressional wisdom," as aptly stated by Mr. Justice Story-" to the lights of experience." Then, following that, what happened?

Let us "stop, look, and listen":

There appears in the record of the Congress of the United States for the first time in 1789-136 years ago a discussion of that subject. As my learned colleague, with whom I have the honor to be associated, told you yesterday, all they considered was the question whether it would be better to leave the appointive power, plus the removal power, with the President of the United States.

They decided to leave the removal power, in the absence of legislative restrictions, with the President of the United States, and that ended the discussion. They did not leave the removal power with the President of the United States, in the face of statutory restriction to the contrary.

Coming to the real controversy-the point involved, and about which one of the associate justices asked me yesterday, is if the appointment was not left to the President alone? Suppose it was left to the "President alone." What does that mean? It merely means, in referring to inferior officers, that Congress may delegate the appointments to the President alone, giving to him the power of appointment. Yet the Constitution expressly provides that appointments by the President must have the consent of the Senate. Appointments with the consent of the Senate, yet not removals with the same consent? If the distinction, it has not been answered-it never will be. It means simply this-that they would not delegate to the President alone the appointment and the removal of these certain officers. It means that Congress would reserve the power

(except as to certain offices there specified) to act upon the power of appointment and upon the power of removal as well.

Now, note, if the honorable court please, the language of the Constitution: The Constitution delegates to the President the power to appoint the ambassadors, to appoint the consuls, and certain other officers, there named, and then it adds that Congress may appoint the inferior officers.

What does that mean? It means that, as to all officers, not there designated, the President may have the power of appointment when Congress may so delegate. He may have jurisdiction to remove these certain officers specified when and in the manner Congress may designate. But the Congress, with its authority over the power of appointment, of said inferior officers, has the authority, which, when power is delegated to the President alone, to the heads of departments, and to the courts of law, each or either alone, to place its own limitations upon that power. It means what it says, and that is all there is to it. A stream can never rise higher than its source.

The learned Solicitor General would have this honorable court believe, that, because not expressly stated in the Constitution, the power of removal is thereby reserved to the President of the United States.

Does it necessarily mean, because the Constitution is silent upon that question, that the President of the United States has unlimited power? Shall we say the President has the power to do anything not inhibited by the Constitution, or to do only that which is expressly or impliedly thus authorized?

Let us take into consideration the experience of ages that preceded and led up to that Revolution which developed the very discussion under consideration. The very feature they were most jealous of in those days, as everyone knows-and this honorable court will have the right to take judicial notice of-was the fact that from the birth of the Continental Congress on down they recognized, "in the light of history," the dangers to follow the inherent powers, as sometimes termed, of the power of the Executive; that from the moment a power was delegated, that power never again returned to the people from which it emanated. History bears sad witness to that fact; it never has been returned without a revolution of some sort, and probably never will. None more than the framers of our Constitution realized that fact. As was said by the present Chief Justice in his excellent work upon that very subject, Our Chief Magistrate and His Powers, it is never returned to the source giving the authority. The Solicitor General presents this question: He asserts there is no power of removal mentioned in the Constitution. To state it in other language, that there is an implied power of removal given to the President under the Constitution regardless of the Senate. He did not mean to state it that way, probably, but he did. can not do better than quote this statement, which I think is appropriate here," that any power that is attempted to be delegated to the President of the United States, unless expressly stated, is impliedly

reserved.'

We

When the convention from the Confederated States of America had met, and when they purported to exercise their authority, to everyone familiar with the history of that day and time, it is clear they did not intend to delegate to the President any power not there enumerated or necessarily implied. In other words, they were jealous in the exercise of even their powers of that day. They hesitated to