193 | Executive and administrative powers

Myers v. United States

272 U.S. 52 (1925) | Decided October 25, 1926

FACTS

A postmaster who was removed from office petitioned the President and the Senate
committee on Post Offices for a hearing on any charges filed; protested to the Post Office
Department; and, 3 months before his 4-year term expired, having pursued no other
occupation and derived no compensation for other service in the interval, began suit in
the Court of Claims for salary since removal. No notice of the removal, nor any nomination
of a successor, had been sent in the meantime to the Senate whereby his case could
have been brought before that body, and the commencement of suit was within a month
after the ending of its last session preceding the expiration of the 4 years.

Under an 1876 rule, the President had to get the Senate’s permission to remove the
postmaster of Portland, Oregon. That individual had been appointed with the Senate’s
advice and consent. The President asked for the individual’s resignation without
consulting the Senate first, and the Senate refused the President permission to do so.

ISSUE

Whether under the Constitution, the President has the exclusive power of removing
executive officers of the United States whom he has appointed.

RULING

Yes. The Supreme Court of the United States (the Supreme Court) produced a long-
winded opinion, examining the legislative and adjudicative history of executive
appointments, including Marbury v. Madison. It concluded that Tenure of Office Act of
1867, “in so far as it attempted to prevent the President from removing executive officers
who had been appointed by him by and with the advice and consent of the Senate, was
invalid, and that subsequent legislation of the same effect was equally so.”

Section 6 of the Act of July 12, 1876, which provides: "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,”- unconstitutional in its attempt to make
the President's power of removal dependent upon consent of the Senate.

The President is empowered by the Constitution to remove any executive officer

appointed by him by and with the advice and consent of the Senate, and this power is not
subject in its exercise to the assent of the Senate, nor can it be made so by an act of
Congress.
The provision of Art. II, § 1, of the Constitution that "the Executive power shall be vested
in a President" is a grant of the power, and not merely a naming of a department of the
government.

The provisions of Art. II, § 2, which blend action by the legislative branch, or by part of it,
in the work of the Executive, are limitations upon this general grant of the Executive power
which are to be strictly construed, and not to be extended by implication.

Removal of executive officials from office is an executive function; the power to remove,
like the power to appoint, is part of "the Executive power," -- a conclusion which is
confirmed by the obligation "to take care that the laws be faithfully executed.

The power of removal is an incident of the power to appoint; but such incident does not
extend the Senate's power of checking appointments, to removals.

The excepting clause in § 2 of Art. II, providing "but Congress may by law vest the
appointment of such inferior officers as they may think proper in the President alone, in
the courts of law or in the heads of departments," does not enable Congress to regulate
the removal of inferior officers appointed by the President by and with the advice and
consent of the Senate.

A contemporaneous legislative exposition of the Constitution when the founders of our

Government and framers of the Constitution were actively participating in public affairs,
acquiesced in for many years, fixes the meaning of the provisions so construed.