THE REMOVAL FROM OFFICE CASE

In the case Myers v. United States W. R. King, Esq., appeared for the appellant, Hon. James M. Beck, Solicitor General of the United States, for the appellee, and Hon. George Wharton Pepper, senior Senator from Pennsylvania, as amicus curiae, at the invitation of the court, in favor of the appellant.

The argument was opened by Mr. King, who explained the facts of the case and discussed the question whether the postmaster had waived any right which he had to the office in question by a tacit acquiescence in his removal.

The constitutional questions involved in the case were then discussed by Senator Pepper, in support of the power of Congress to limit the President's right of removal, and by Solicitor General Beck, in support of the power of the President to make the removal unrestrained by any legislation to the contrary.

These oral arguments on the question of constitutional power were as follows:

ORAL ARGUMENT OF SENATOR PEPPER

The CHIEF JUSTICE. Senator Pepper.

Senator PEPPER. May it please your Honors: There are two questions before the court which I shall discuss as clearly and briefly as I can.

With respect to the matter of laches, I have only this to say: That up until the time of the expiration of the Congress, during whose session the appointment took place, it was at all times possible for the President to submit to the Senate a request for approval of the removal which he had undertaken to make. I take it, therefore, that the bringing of a suit while the Senate was in session would have been the bringing of a suit in advance of the perfection of a cause of action. If suit had been brought on the first pay day after the removal, and there had been a recovery, and subsequently the President had sent in a report of his action and the Senate had either approved it by consent or had consented to the appointment of a successor within the term, we should have had an award or judgment entered in advance of the time when it was clear that the President was acting without an intention to consult the Senate.

The Congress having expired on the 4th of March, 1921, the present action was begun by petition on April 25, 1921, only six or seven weeks after the perfection of the cause of action, and three months before the expiration of the term for which the appellant had originally been appointed. So that it was necessary at a later day to file an amended petition in order to bring in so much of the salary as had accrued between the date of the filing of the original petition and the expiration of the term.

I submit that if an officer of the United States claiming to have been illegally removed, who has protested continuously during the

whole of the session to which his removal might have been reported; who has kept himself free from other employment and received no compensation from any other source; for whose successor no provision was made either by the President alone or by the President with the advice and consent of the Senate; who then brings his suit within six or seven weeks after the perfection of the cause of action-if he is to be denied a right of recovery on the ground of laches, the Government is handing to him with one hand the privilege of suing for the salary on the theory of unjustifiable removal, and with the other hand withdrawing the possibility of recovery, because the course of conduct that in that event would be prescribed for him is one which it would have occurred to few people to pursue.

That, may it please the court, is all that I have to say on the question of laches.

I come to the question on the merits, which, after all, is the great question in the case.

With the permission of the court, I read the section (section 6 of the act of July 12, 1876) under which this appellant was appointed by the President, by and with the advice and consent of the Senate. The section in question appears in the brief which I have filed, at page three, and reads thus:

Postmasters of the first, second, and third classes shall be appointed and may be removed by the President, by and with the advice and consent of the Senate, and shall hold their offices for four years unless sooner removed or suspended according to law.

"Postmasters of the first, second, and third classes "--and this postmaster was a postmaster of the first class" shall be appointed and may be removed by the President, by and with the advice and consent of the Senate."

The Solicitor General all but concedes that this language evidences the intent of Congress that the Senate's consent shall be essential to the removal as well as to the appointment. In other words, may it please the court, the situation which confronts your honor is this: The Congress, in the exercise of an undoubted legislative power to create the office in question creates it; prescribes the duties of the office; fixes the salary; specifies the term; and declares that the Senate shall have something to say with respect to removal, if removal is attempted. And the question is whether the Executive, having exercised his constitutional right to appoint, with the advice and consent of the Senate, to the office which Congress has thus created, may ignore that part of the statute which specifies the conditions under which there may be a removal. The Congress in creating the office has declared that the responsibility of removal shall be the joint responsibility of the Executive and the Senate. May the Executive act under the statute, in so far as it creates the office, and may he ignore that portion of the statute which prescribes the conditions and circumstances under which a removal may take place?

That, may it please your honors, is the question; and reflection will satisfy your honors, I am sure, that it is a fundamental question. A review of the history of the matter shows that it is a debatable question, and a survey of existing legislation affected or to be affected by the decision in this case demonstrates that it is an intensely practical question.

In beginning my discussion, I wish to make the point that the act of 1876 is in no sense a bit of isolated or eccentric legislation. With the aid of one of the most efficient of Government agencies, the legislative counsel for the Senate, I have collated, as exhaustively as has been possible within the limits of the time for preparation, the statutes now upon the books, which in some degree undertake to place limitations upon the presidential power or right of removal, if such a power or right exists.

The CHIEF JUSTICE. It is in your brief, is it?

Senator PEPPER. Yes, Mr. Chief Justice; I have incorporated that matter, which I can not help thinking may prove useful to the court, in an appendix to the brief, a separate pamphlet. And I am indebted for much the larger part of the work to Mr. Lee, the very capable legislative counsel of the Senate, for cooperating with me in this matter.

When your honors glance over that summary, you will find, I think, that in no less than four classes of cases the Congress has assumed the power to declare that the conditions of removal from offices created by act of Congress are conditions under which the President is not left to himself in determining the propriety of removals.

The first group of statutes are those in which it is specified that the removal may be by the President alone, but only for certain causes which are enumerated, and it is specifically provided that the removal shall be for no other causes.

Then there are cases in which the President is to remove, he alone removing, but only after action by somebody other than the Congress or the Executive. Those are the statutes, for example, which provide that in time of peace officers of the Army or the Navy may not be removed by the President except after sentence of court-martial.

Then, in the third place, there are statutes which provide that certain officers may be removed only as the result of the concurrence of the Senate in the removal; the instant case presenting an illustration of such an act.

And the fourth class of cases contains those, of which the Budget legislation is an example, where, as in the case of the Comptroller General, it is provided in the act creating the office that removal shall be only by joint resolution of the two Houses and not by the Executive at all, except to the extent that the Executive's approval may be necessary to perfect the legislative action of the two Houses of Congress.

Mr. Justice SANFORD. Were all of those acts approved by the President at the time, or were they passed over the presidential veto? Senator PEPPER. My impression, sir, is that every one of the statutes which are listed in this appendix-certainly all the important ones are statutes which were approved by the President in the first instance. It will be remembered that the first statute creating the office of Comptroller General in somewhat its present form was vetoed by President Wilson; and it will also be remembered that an act, long since repealed-the historic tenure of office act, passed in 1867 and repealed in 1887-was vetoed by President Johnson and passed over his veto. But substantially all-I speak subject to correction-but I think substantially all of the important statutes now

upon the books and included in the appendix before your honors are statutes which have received the approval of the Executive.

Now, may it please the court, in this summary I have taken no account of a very great and important class of statutes in the case of offices created by act of the Congress, which prescribe certain grounds upon which the President may remove, the statute using affirmative language only. I have left those out of consideration, so far as my brief is concerned, in deference to the decision of this court in Shurtleff v. United States, in 189 U. S.,1 in which case the President had removed a member of the Board of General Appraisers who had been appointed under a statute which prescribed that he should be removable for misfeasance or malfeasance in office. It was contended by him in his endeavor to make good his contention that his removal had been illegal, that those affirmatives were pregnant with a negative, and that it was the true intent and meaning of Congress that there should be a removal for these causes, but not for any others; the President not having in that case removed for any one of the specified causes, or, indeed, for any specific cause.

This court held that that rule of interpretation was not applicable upon such a state of facts. This court held that the affirmative language was not inconsistent with an intention to leave the President free to remove for other causes not specified in the statute.

I call attention to that for two reasons: In the first place, because it is an interesting bit of history that, that case having been decided, I think, in 1903, the Congress two or three years afterwards so amended the act which was under consideration in that case as to provide that the officer in question should be removable for the specified causes, and not for any others, but should hold his office during good behavior.

The point is, that under the decision as originally rendered, the court held that the prescription by the Congress of the grounds of removal contained no implication that there might not be an Executive removal for other grounds; and then the Congress, being desirous of expressing its meaning more clearly, amended the act and put it into the form in which it now stands, namely, that the removals may be for the specified causes and for no others, that the officers shall hold "during good behavior," borrowing in that respect the constitutional expression applicable to the Federal judges.

The statutes under which officers hold office under affirmative words specifying the grounds of removal are some of the most important statutes on the books. They affect the Interstate Commerce Commission, the Federal Trade Commission, the Tariff Commission, and many others that I might specify. And it will be observed that they would be brought into the realm of the discussion in the present case merely by superadding to the affirmative words the words of negation, providing that the removal may be for such-and-such causes, "and for no others"; or specifying that the officers shall hold during good behavior, which, I take it, must be pregnant with the negative that there can not be a removal while there is good behavior.

I have also, may it please the court, laid aside from consideration a number of cases which do not bear directly upon the existence of an Executive right to remove, but which do bear directly upon the

1 189 U. S. 311.

constitutionality granted Executive right to appoint. There are many cases in the statutes, (and they are collected in the memorandum before your honors) where Congress has undertaken to limit the area of selection which the President must observe in making nominations which, under the second section of the second article of the Constitution he has the constitutional right to make; statutes which declare, for instance, that only so many members of a board shall be selected from one political party; zoning statutes, which declare that the vacancy to be filled must be filled by an appointment from a particular geographic area, and so on.

I call attention to them, because it seems to me that if there is to be an argument that the implied power of removal is one which Congress can not in any way limit by legislation or qualification, an argument to the same effect might equally well be made that all of these acts of Congress are unconstitutional in respect of the limitation that they impose upon the expressly granted constitutional right to nominate and, by and with the advice and consent of the Senate, to appoint.

When your honors look at the statutes that concern only the questions of removal, I think you will be of opinion that I am not overstating it when I say that this act of 1876 is not an eccentric or isolated bit of legislation, but that there are upon the statute books to-day many statutes of the four classes that I have enumerated, all of which must be at least in the background of thought when your honors approach the consideration of the question before us.

Now, coming to the question itself: Here we have a constitutional "no man's land." It lies between the recognized lines of Executive prerogative and of legislative power. The question is, Who may rightfully occupy it? And the decision of this court in this case will be of enormous significance in helping to clear up the question as to who may enter in and possess that area which up to date has

been debatable.

I lay aside from consideration the case of officers of the United States whose tenure is prescribed by the Constitution, the justices of this court and the Federal judges generally, and I turn to other officers for whose term of tenure the Constitution makes no provision. And with respect to them and in relation to this matter of the power of removal I suggest that the court must choose between three theories.

One is the theory that the power of removal is an Executive power; that it is inseparably incident to the power of appointment; and that since the Constitution places the limitation of senatorial consent only upon the power of appointment the inference is that the power of removal is left untrammeled and free. That, I take it, is the position which the Government must take here. It is the position which the Solicitor General took at the previous argument. It is a proposition the consequences of which, I think, he shrinks from recognizing now; but in the last analysis it must be upon that proposition that the appellee must base its case.

Then there is the second proposition: That if the power of removal is a reciprocal of the power of appointment, then since the Constitution has insisted that there shall be joint responsibility with the Senate in the case of appointment the inference is that there is an intention that there shall be joint responsibility in the case of