Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1867-03-05
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% AsTHhe natareI of the Government re
quires the power of removal, it was main
,tained that it should be exercised in thi
way by the hand capableOf exerting itsel
with effect, and the power must be confer
red on the President by the Constitution
as the Executive officer of the Govern
ment. .soolo ~ tfff'i 31Is' r tnI crow
ydMr. Madison. whose adverse opinion il
the FederdIist had been relied upon by those
who denied the exclusive power, now par.
ticipated in the debate. He declared thai
he had eschewed his former opinions, anC
he summed up the whole case as follows:
.The Constitution affirms that the execu-
tive power isvested in the President. Are
there exceptions to this proposition? Yes
there are: The Constitution says that In
appointing to office the Senate shall be as
sociated with the President, unless in the
case of inferior officers, when the law shall
Otherwise direct. Have we-that is. Con-
gress4ar right to extend this exception? ]
believe not. If the Constitution has in
vested all executive power In the President,
1'venthre to assert that the legislative has
no right to diminish or modify his execu-
tive althority. Thesquestion now resolves
itself into this: is the power of displacing @
an executive power? lWhatever is in the
executive it is in the power of appointing,
overseeing and controlling those who exc
euteithe laws. If the Constitution had not
qualified the power of the President in ap-
pointing to Office by associating the Senate
with him in that business, would it not be
clear that he would have the right by. vir-
tuetof his executive power to make such
appointment? Should we be authorized in
defiance of that clause In the Constitution,
The executive power shall be vested in
the President to unite the Senate with
the President in the appointments to office
/ conceive not. If it is admitted that we
should Motive have no right to-associate
them dn removing persons from office, the
one power being as much of an executive
nature as the other. The first one is au-
therized by being accepted out of the gem
eral rule established by the Constitution in
the words, The executive power shall be
vested in the President % 81 = esf'5i q
THE question thus ably and exhaustively'
argued was decided by the House of
Representatives by vote of thirty-fot1r
executive power Of removal is vested by
the Constitution in the Executive, and in
the Senate by the casting vote of the Vice
President. 81 GsF.z@
0The question has often been raised in
subsequent times of high excitement, but
the practice OF the Government has never
thehess been conformed in all cases, to the
decision thus early made. The question.
was reviewed during the Administration of
President jackson, who made, as Is well
recollected,. very large number of re-
m0YAls, which were made an occasion of
active and vigorous scrutiny and remon-
strahoe.t The subject was long and ear
nestly debated in the Senate. The early
construction of the Constitution wac new
ertbeless freely accepted as binding and con-
elusive on Congress- al 1i 5Ha ggI82 Z .DLl
The question came up before the Su-
preme Court of the United States in jan
uary3 1889, 66 Ipdgte Hennenan 1t was de-
clared by the Court on that occasion, that
the gpOWergOf1 removal from office was a
subject. much disputed and upon which
great diversity OF opinion was entertained
in early history of the Government.
This related, however, to the power of the
President to remove officers appointed with
the concurrence of the Senate, and the
great question was whether the removal
was to be by the President alone, or with
the concurrence of the Senate, both
constituting the appointing power. No
one denied the power of the President
and Senate jointly to remove where
the tenure of the Office was not fixed by the
which was full recognition |
of the principle that the power of removal
was incident to the power of appointment; |
but it wassvery early adopted as practi- |
cal construction of the Constitution, that
this power was vested in the President1
alone. Such would appear to have been
the legislative construction OF the Consti- |
tuition, for in the organization OF the three |
great departments OF State, War and Treas |
1ry, in the year 1889, provisions was made |
for the appointment of a subordinate Off |
GER, by the head OF the department, who |
should have charge of the records, books |
appertaining to the office, when
the head of the department. should be re-
moved from office by the President of the /
United States a-ofoI u z9Z .55agqu -
When>the Navy Department was estab-
ished in the year 1898, provision was made |
Tor the charge and custody of the books, re-
cords and documents of the departments, |
in case of vacancy in the aeffice5 of Sec-1
retary by removal, or otherwise It is not
here saidsby removal Of the President, as |
Is done with respect to the heads of the |
other departments; yet there can be no
doubt that he holds office with the same |
tenure as the other Secretaries, and is re-
movable by the President. 4 The change of
arose probably from its hav-
ng become the settled and Well-understood |
of the Constitution. The |
Dower1of removal was vested in the Presi-
lent alone in such cases, although the ap-
of the officers is by the President !
Ind Senate. 18th Peters, page 139
Our most distinguished and accepted
writer's upon the Constitution concur in the |
thus early given by Congress
aITd thus sanctioned by the Supreme Court
After full analysis of the Congressional I
debates to which I have referred, Mr.. JUS
ice Story comes to this conclusion: stAf-f
.er a most animated discussion the vote /
inally taken in the House of Representa-
lives was an affirmation of the bower of |
removal in the President Without any CO.
operation of the Senate by the vote of thir-
5y- four members against twenty: in the
hn aIo N in hc n off
power was carried by the casting vote of I
the President. That the final decision of +
the question so made was greatly influence /
ed by the exalted character of the Presi- |
dent then in Office was asserted at the time, |
and has always been believed; yet the doc
trine was opposed as well as supported by |
the highest legal talent and patriotism of |
the country. The public have acquiesced |
in this decision, and it constitutes, perhaps, |
the mostlextraordinarY case in the history |
Of the Government of a power conferred I
by Implication on the Executive, by bare I
majority of Congress, which has not been
questioned on many other occasions" haE
The. commentator adds: Nor is this
general acquiescence and silence without
explanation" Chancellor |
Kent remarks on the subject as follows
s On the first organization of the Govern
nent it was made a question whether the I
power of removal in case of officers ap-
pointed to hold at pleasure, resides nowhere |
but in the body which appointed, and, of
course, whether the consent of the Senate |
was not required for the, removal" This
was the construction given to the Constitu-
ton while it was pending for ratification
before the State Conventions by the author
Of the general act; but the construction
which was given to the Constitution bv I
Congress after great consideration and dis +
,ussion was different. The wore of the act !
the. Treasury Department are !:
= And whenever the same shall be removed
from Office by the President of the United
States, or in any other case of vacancy in