28

Removal of the Assistant Secretary of Commerce 

by the Appointment of a Successor

The removal from office of the Assistant Secretary of Commerce can be properly effected merely by

the appointment of a successor by the President with the advice and consent of the Senate.

June 10, 1935

MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

In accordance with your request I have considered the question whether the 

removal from office of Assistant Secretary of Commerce Mitchell can be effected 

by the appointment by the President of his successor and confirmation of the

appointment by the Senate.

It appears that Mr. Mitchell was appointed to the office of Assistant Secretary 

of Commerce by the President by and with the advice and consent of the Senate 

pursuant to section 8 of the Act of May 20, 1926, Pub. L. No. 69-254, 44 Stat. 

568, 573. This section in no wise restricts the authority of the President to remove 

an incumbent from such office. It is understood that the resignation of Mr. 

Mitchell has been requested but that he has declined to resign, and that the 

President desires, if it can legally be done, to remove him from office merely by 

the appointment of his successor.

The question involved was considered by the Supreme Court of the United 

States in Ex Parte Hennen, 38 U.S. (13 Pet.) 230 (1839). That case involved the 

validity of the appointment of a clerk of the District Court of the United States for 

the Eastern District of Louisiana by the Judge of the District Court. While Hennen 

was serving as clerk of that Court, to which office he had been duly appointed, the 

judge of the district court executed and delivered to John Winthrop a commission 

appointing him as clerk. Proceedings in mandamus were brought to require the 

judge to restore Hennen to the office. Discussing the effect of the appointment of 

Hennen’s successor, the Court said:

The law giving the District Courts the power of appointing their 

own Clerks, does not prescribe any form in which this shall be done.

The petitioner alleges that he has heard and believes that Judge Lawrence did, on the 18th day of May, 1838, execute and deliver to John

Winthrop, a commission or appointment as clerk of the District 

Court for the eastern district of Louisiana, and that he entered upon 

the duties of the office, and was recognised by the judge as the only 

legal clerk of the District Court. And in addition to this, notice was

given by the judge to the petitioner, of his removal from the office of 

clerk, and the appointment of Winthrop in his place; all of which was 

amply sufficient, if the office was held at the discretion of the Court, 

The power vested in the Court was a continuing power; and the mere 
Removal of the Assistant Secretary of Commerce by the Appointment of a Successor

29

appointment of a successor would, per se, be a removal of the prior 

incumbent, so far at least as his rights were concerned. How far the 

rights of third persons may be affected is unnecessary now to consider. There could not be two clerks at the same time. The offices

would be inconsistent with each other, and could not stand together.

Id. at 261.

The Hennen case is cited with approval in Blake v. United States, 103 U.S. (13 

Otto) 227 (1880). In that case suit was instituted in the Court of Claims by Blake 

to recover the amount alleged to be due him by way of salary as post-chaplain in

the Army from April 28, 1869, to May 14, 1878. On December 24, 1868, Blake 

wrote a letter of complaint which was treated by the Secretary of War as a 

resignation from office. His successor was appointed by the President and the 

appointment was confirmed by the Senate. Blake contended that at the time his 

letter was addressed to the Secretary of War he was insane to the extent that he 

was irresponsible for his acts, and consequently that his supposed resignation was

inoperative and did not have the effect of vacating the office. The question passed 

upon by the Court was: “Did the appointment of Gilmore, by and with the advice 

and consent of the Senate, to the post-chaplaincy held by Blake, operate, proprio 

vigore, to discharge the latter from the service, and invest the former with the 

rights and privileges belonging to that office?” Id. at 230.

The Court answered the question in the affirmative, and in the course of its 

opinion stated:

It results that the appointment of Gilmore, with the advice and 

consent of the Senate, to the office held by Blake, operated in law to 

supersede the latter, who thereby, in virtue of the new appointment, 

ceased to be an officer in the army from and after, at least, the date at 

which that appointment took effect,—and this, without reference to 

Blake’s mental capacity to understand what was a resignation. He 

was, consequently, not entitled to pay as post-chaplain after July 2, 

1870, from which date his successor took rank. Having ceased to be 

an officer in the army, he could not again become a post-chaplain,

except upon a new appointment, by and with the advice and consent 

of the Senate.

Id. at 237.

This principle is also recognized in Wallace v. United States, wherein the Court 

states:

While, thus, the validity and effect of statutory restrictions upon 

the power of the President alone to remove officers of the Army and 

Navy and civil officers have been the subject of doubt and discussion, it is settled, McElrath v. United States, 102 U.S. 426; Blake v. 
Supplemental Opinions of the Office of Legal Counsel in Volume 1

30

United States, 103 U.S. 227; Keyes v. United States, 109 U.S. 336; 

Mullan v. United States, 140 U.S. 240, that the President with the 

consent of the Senate may effect the removal of an officer of the 

Army or Navy by the appointment of another to his place, and that 

none of the limitations in the statutes affects his power of removal 

when exercised by and with the consent of the Senate. Indeed the 

same ruling has been made as to civil officers. Parsons v. United

States, 167 U.S. 324.

257 U.S. 541, 545 (1922).

The practice of removing incumbents from office by the appointment of their 

successors by the President and the confirmation of such appointments by the 

Senate has existed from an early date. In Myers v. United States, Mr. Justice 

Brandeis, in his dissenting opinion, states:

From the foundation of the Government to the enactment of the 

Tenure of Office Act, during the period while it remained in force, 

and from its repeal to this time, the administrative practice in respect 

to all offices has, so far as appears, been consistent with the existence in Congress of power to make removals subject to the consent 

of the Senate. The practice during the earlier period was described 

by Webster in addressing the Senate on February 16, 1835:

“If one man be Secretary of State, and another be appointed, the 

first goes out by the mere force of the appointment of the other, 

without any previous act of removal whatever. And this is the 

practice of the government, and has been, from the first. In all the 

removals which have been made, they have generally been effected simply by making other appointments. I cannot find a case to 

the contrary. There is no such thing as any distinct official act of 

removal. I have looked into the practice, and caused inquiries to 

be made in the departments, and I do not learn that any such proceeding is known as an entry or record of the removal of an officer from office; and the President could only act, in such cases, 

by causing some proper record or entry to be made, as proof of 

the fact of removal. I am aware that there have been some cases 

in which notice has been sent to persons in office that their services are, or will be, after a given day, dispensed with. These are 

usually cases in which the object is, not to inform the incumbent 

that he is removed, but to tell him that a successor either is, or by 

a day named will be, appointed.” 4 Works, 8th ed., 189.
Removal of the Assistant Secretary of Commerce by the Appointment of a Successor

31

In 1877, President Hayes, in a communication to the Senate in response to a resolution requesting information as to whether removals

had been made prior to the appointment of successors, said:

“In reply I would respectfully inform the Senate that in the instances referred to removals had not been made at the time the 

nominations were sent to the Senate. The form used for such 

nominations was one found to have been in existence and heretofore used in some of the Departments, and was intended to inform 

the Senate that if the nomination proposed were approved it 

would operate to remove an incumbent whose name was indicated. R.B. Hayes.” 7 Messages and Papers of the President, 481.

Between 1877 and 1899, the latest date to which the records of 

the Senate are available for examination, the practice has, with few 

exceptions, been substantially the same. It is, doubtless, because of 

this practice, and the long settled rule recently applied in Wallace v. 

United States, 257 U.S. 541, 545, that this Court has not had occasion heretofore to pass upon the constitutionality of the removal

clause.

272 U.S. 52, 259–61 (1926) (emphasis in original; footnotes omitted).

In footnote 28 of Mr. Justice Brandeis’s dissenting opinion, it is stated:

Since the enactment of the Tenure of Office Act various forms 

have been used to nominate officials to succeed those whose removal is thereby sought. Examination of their use over a period of thirtytwo years indicates that no significance is to be attached to the use of 

any particular form. Thus the nomination is sometimes in the form 

A.B. vice C.D. “removed”; sometimes it is “to be removed”; sometimes “removed for cause”; sometimes “whose removal for cause is 

hereby proposed.”

Id. at 259–60.

In view of the foregoing, I am of the opinion that the removal of Mr. Mitchell 

from office can be properly effected by the appointment of his successor by the 

President and confirmation thereof by the Senate.

ANGUS D. MACLEAN

Assistant Solicitor General*

 

* Editor’s Note: The version of this opinion in the Unpublished Opinions of the Assistant Solicitor 

General contains the following postscript: “Mr. Mitchell’s commission contains no fixed term, 

according to my information, but provides that he is to hold ‘subject to the conditions prescribed by 

law.’—A.D.M.”