ing the office; that where the statute is silent respecting restrictions upon removal, it is a reasonable inference that the Congress intends removals to be at the discretion of the Executive; but that the right in virtue of which the President acts when he removes is conferred upon him not by the Constitution but by the law creating the office, the legislative enactment passed by Congress in the exercise of its legislative power.

Now, three points, very briefly stated, and I shall have finished: The Solicitor General in striving to find a middle ground between the alternative that there is a prerogative power of removal in the President and the proposition for which I contend, that the power to prescribe conditions of removal is legislative and inheres in Congress-the Solicitor General in attempting to find a middle ground and to save some laws that are on the statute books seems to me to concede my case.

A concession, for example, that Congress may declare a legislative policy respecting how an office is to be administered and for what causes the incumbent is to be removed is an end of the argument that the President must have a free hand if he is effectively to enforce the laws. It will not do to say that the President must have a free hand in the matter of determining when and how he shall remove and at the same time to say that Congress may whittle away his freedom by prescribing the causes for which he may remove and the circumstances under which he may do it. To concede any power in the premises to Congress seems to me to be wholly inconsistent with the theory of a prerogative resident in the Executive, derived from the Constitution, in virtue of which he controls the officers of the United States. And with respect to them, I beg leave to say that the officers, incumbents of offices established by law, are officers of the United States; they are officers of the Government; they are officers of the people. They are not servants of the President.

In the second place, may it please your honors, I wish to call attention to that portion of section 2 of Article II of the Constitution which, after dealing with the manner of appointment of ambassadors, other public ministers, consuls, justices of this court, and all other officers whose offices may be established by law, proceeds thus:

But the Congress may by law vest [in the case of such inferior officers as may be from time to time established, the appointment either] in the President alone, in the courts of law, or in the heads of departments.

I take it that "inferior officers" is a broad term and covers all officers not specified in the Constitution, and not heads of departments. Certainly a postmaster is an inferior officer.

And I take it that if Congress might have, notwithstanding the provision that the President shall nominate and, by and with the advice and consent of the Senate, appoint such-and-such officers-if the Congress under the Constitution might have lifted the appointing power in this case out of the President altogether and vested it in the Postmaster General, then Congress has clearly the right, in vesting it in the President, to prescribe the terms upon which that vesting shall take place and how the power of removal shall be exercised. In other words, with reference to an important decision of this court, the Perkins case, in 116 U. S.' where the Congress had vested

United States ". Perkins, 116 U. S. 483.

the appointment of cadet engineers in the Secretary of the Navy, and had prescribed conditions of removal, and the Secretary of the Navy removed without compliance with the terms, this court decided that the power to vest in the head of a department the appointment carried with it the power to prescribe conditions, including those affecting removal. And it would be a distorted application, may it please the court, of the prerogative theory of executive power to say that Congress might have vested the appointment of this officer elsewhere than in the President and have retained control over the removal, but that having chosen to vest it in the President, it might not annex conditions to the vesting which concerned the circumstances of removal.

Mr. Justice HOLMES. What case was that?

Senator PEPPER. That was United States v. Perkins. My recollection is that it is in 116 U. S. I shall have great pleasure in citing it to your honor. It is on page 60 of my brief. It is 116 U. S. 483, and was decided in 1886. And there is a very interesting passage in the opinion, in the course of which the court says this:

It is further urged that this restriction of the power of removal is an infringement upon the constitutional prerogative of the Executive, and so of no force, but absolutely void. Whether or not Congress can restrict the power of removal incident to the power of appointment of those officers who are appointed by the President, by and with the advice and consent under the authority of the Constitution, does not arise in this case and need not be considered.

And, finally, I wish to emphasize as earnestly as I may that the issue in this case is not an issue between the President and the Senate. Excepting in newspaper headlines, there is no such controversy. This is an issue between executive power and legislative power; and the question is where the Constitution has vested the power of removal, either in the Congress, as I contend, or in the President, as I think the Solicitor General must contend.

There was a controversy between the President and the Senate in Mr. Cleveland's time. There was a case where what was left of the tenure of office act-passed originally in 1867 and whittled down in 1869-had withdrawn the requirement that the President must give his reasons for what he had done, and required merely that, within 30 days after the convening of Congress following the recess in which he had removed, he must send in the name of a successor to the Senate. He did so; and the Senate in that case, having been given by the Congress no responsibility whatever in the matter of removals, undertook to say, when President Cleveland sent in the name of a successor, that they would not confirm the successor until the President had complied with a request, made upon the Attorney General in form but really upon the President, to give the reasons why he had created the vacancy by a removal. The Senate undertook, for purposes of control over patronage, to usurp a function which the legislature had not charged it with and intruded itself into the matter of removals by refusing to confirm appointments of successors until information respecting the removals had been given. And in the struggle that ensued the Attorney General having refused to give reasons, acting under instructions from the President, and a condemnatory resolution having passed in the Senate, the whole matter ended in rather opéra bouffe fashion, by

the discovery that the term of the man removed had expired before the Senate sent in the request for the reasons for the removal. So there was nothing to be done but confirm the successor, which was done.

But this controversy resulted, in 1887, in the final repeal of what was left of that vicious legislation, the tenure of office act.

That was a controversy between President and Senate. That was a case of senatorial usurpation. But over and against a case of senatorial usurpation in a former day, I set what in the instant case seems to me to be a case of executive usurpation. And I close by urging your honors to set this controversy at rest once and for all by determining that the power to control removals is neither in the President nor in the Senate, but that in accordance with the agelong traditions of English constitutional history, it resides in the Congress of the United States, where the Constitution has placed it.

ORAL ARGUMENT OF THE SOLICITOR GENERAL

If the court please:

I agree with opposing council that, if this statute is constitutional. the appellant has a good cause of action. The statute of limitations. which Congress prescribed, gave Mr. Myers six years within which to assert his rights. While this court has held that a less time can result in a waiver of an office by virtue of acquiescence in the act of removal, yet such acquiescence must be shown by circumstances that clearly justify the conclusion that the man thus unlawfully removed never intended to assert his just rights in the premises. In this case, I am frank to say, I can find no evidence of any waiver or acquiesence. I do not know what more Mr. Myers could have done in asserting his rights. The pertinacity with which he asserted his title until his commission had expired is worthy of the legendary boy on the burning deck. He stood by his guns in respect to the alleged unlawfulness of his dismissal and awaited an opportunity to serve in an office, of which he consistently asserted he had been unlawfully deprived, until his commission had expired and then within a few weeks thereafter he commenced his

suit.

Therefore, if the Government is to prevail in this case, it must be on the ground that the statute, in so far as it required the consent and approval of the Senate to his removal, is unconstitutional.

I therefore address myself to this great constitutional questiona question which has repeatedly been submitted to this court, but which the court up to the present hour has found it unnecessary to decide; a question of great delicacy, because it affects the relative powers of two great departments of the Government; and a question, the decision of which, I venture to say, can not long be postponed. I quite concur in the concluding statement of the distinguished Senator from Pennsylvania that, as this great question is squarely presented in a concrete case, this court should now determine it for the benefit of both departments of the Government.

I am glad that the case was not disposed of on the preceding ex parte argument, and that the court has now had the benefit of the argument of the appellant's counsel, formerly a distinguished mem

ber of the Supreme Court of Oregon. The wisdom of inviting the senior Senator from Pennsylvania to represent the views of Congress has been amply vindicated in the scholarly and powerful brief that he has filed, and in the very interesting and eloquent argument that he has orally made. I take a just pride in his brief and argument; for I share with him the great privilege of having been called to the bar by the historic bar of Philadelphia; and I think that Senator Pepper's oral argument and his very able brief are worthy of the best traditions of that bar.

His scholarly research and the earnestness with which he has pressed the argument are only equaled by his courage; because he has not shrunk from the logical implications of his argument; and I shall try to show, in limine, that that argument, if appled by a hostile Congress to the President, might make our Constitution little more than a house of cards.

For, if I understand Senator Pepper's contention, it is this: That the President's power of removal is not a constitutional power; that he derives nothing from the Constitution, under which the "executive power" was vested in the President of the United States. That he gains nothing by reason of the solemn obligation imposed upon him by that Constitution to "take care that the laws be faithfully executed." That he gains nothing by the oath which the Constitution exacts from him that he will support, maintain, defend, and preserve the Constitution of the United States. That his only power in this vital matter of administration of removing officers is derived from the inaction of Congress, which has plenary power over the subject of removals from office. So I understand the Senator to contend.

It seems to me an amazing proposition. I had not so understood his brief; but I do so understand his oral argument of yesterday. As I read the brief, he said that the power of removal is "an executive act"; he did not say "an executive power"; and perhaps he had in mind that fine shading of expression in the Constitution, to which he attached a significance which I do not think it deserved, between the "power" to negotiate treaties and the duty imposed merely to nominate. I think there is no practical distinction between the two grants of power.

8

9

But he did not in his brief challenge the fact that, from the beginning of this Government to the present hour, and by the sanction of this court in the Parsons case and the Shurtleff case, the power to remove has been recognized as an executive power; that it exists in the President by force of the Constitution; that it is a part of the "executive power" granted to him in words, and that it is a part of the necessary means to carry out the great objective of his duties. What he did not challenge in his brief, he now challenges in oral argument, for I understand him to argue that the power of removal as exercised by the President is only by the sufferance of Congress.

The one question that this court has never decided has been whether Congress, under its limited grant of legislative power, may restrict, limit, or modify the executive power of removal. If so, and the contention is carried to its logical conclusion, then it can destroy the executive function of removal altogether.

8 Parsons v. United States, 167 U. S. 324. Shurtleff v. United States, 189 U. S. 311.

Senator Pepper has argued-and I want to show the court the grave implications of his contention, not merely suggesting fanciful illustrations, but by illustrations that have their basis in reality-that the power to create an office is legislative in its nature-I grant that and that in thus creating an office Congress may impose as an inherent condition of the continuance of that office whatever conditions it pleases, even if those conditions, as in that instant case, involve a transfer of the executive power of removal from the Executive to the Congress.

He would sustain the law on the ground that Congress was not obliged to create the position of postmaster of Portland, Oreg.; and therefore could create it upon such terms as it pleased, and if so, those conditions are beyond judicial review. In other words, Congress can provide as it has provided in the statute under consideration that the postmaster at Portland, Oreg., should serve during the pleasure of the Senate. If this be true, then the executive power of removal, hitherto supposed to be granted by the Constitution to the President, is no longer in the President, but when Congress creates the office it may grant executive powers with respect thereto to the Senate.

But the grave implications of that doctrine and I venture to say that no more surprising one has been addressed to this court for a long time-are further illustrated by the fact that the Senator and Judge King champion, as an illustration of their argument, the law with respect to the Comptroller General; and while that law is not before this court, yet it does so illustrate the extent to which Senator Pepper's argument can be carried as to the paramount authority of Congress, to redistribute powers, in the guise of creating an office, that I want to read that act to the court. It provides:

There is created an establishment of the Government to be known as the General Accounting Office, which shall be independent of the executive departments—

If this law be valid there is nothing to prevent the Congress from saying that postmasters of the first, second, and third classes are also to be "independent of the executive branch of the Government "-not merely with respect to removal, but for all purposes of administration.

The Budget law statute continues:

and under the control and direction of the Comptroller General of the United States

Not a word of the President of the United States, to whom it has hitherto been supposed the executive power had been granted by the Constitution. This fiscal agency, properly a part of the Treasury Department of the Government, is not only affirmatively made independent of the executive branch of the Government, but in order to exclude the possiblity of any power of the President, we are told that it is to be under the control and direction of the Comptroller General of the United States. And then it provides

Except as hereinafter provided in this section, the Comptroller General and the Assistant Comptroller General shall hold office for 15 years. The Comptroller General shall not be eligible for reappointment. The Comptroller General or the Assistant Comptroller General may be removed at any time by