Port Tobacco times, and Charles County advertiser. (Port Tobacco, Md.) 1845-1898, 1885-04-17
The Presidents Power of Removal.

cal status of the Senate continue, and
should the policy of that body to refuse to
confirm the successors of certain officers,
unless the present incumbents be removed
for what the Senate recognizes to be
proper cause" which was to some extent
the respective powers of the Executive
and the Senate in this regard may be, tor
the first time in the history of the Govern
ment, put to the test of judicial determ
nation.
The Presidents power of appointment
of all the more important civil and mill
tary officers, "by and with the advice and
consent of the Senate" is conferred by the
constitution, but his power of removal
from office is not expressly conferred by
that instrument, but only by implication.
The uniform Interpretation of the Execu
tive powers in that regard down to a com
paratively recent period in the history of
the Government appears. however, to have
been to recognize in the President the ab
solute power of removal of al officers,
whether appointed for definite or indeti-
mite term, and the terms of all commits
sions, it appears, have been expressed to
be during the pleasure of the President"
This power seems 10 have been first
ca led in question 10y what was known as
the ''tenure of office act" passed by Con
gress in 1867. 10y which the Presidents
power of removal Of officers appointed for
fred term is denied, and by which an
officer appointed for such term is author
ICED "to hold such office during the term
tor which he W IS appointed, unless sooner
removed by and with the advice and con-
sent of the Senate, or by the appointment,
with the like advice and consent of q sue
cessor' The immediate inspiration of
this act seems to have been purpose to
prevent President johnson, who was chen
in angry conflict with the Congress upon
the "reconstruc' ion" legislation, from re-
moving the Secretary of War, Stanton,
who had proven unfaithful to the Presi-
dent The constitutions ity of this act
was then fully doubted, but no Judicial
far as the failure Of the impeachment pro-
ceedings against Mr.. johnson may be con
strued as sustaining him in disregarding
it.
But conceding the "tenure of office act''
to be constitutional law and we find
that it ony undertakes to deny he Presi-
dents power of peremptory removal OF
officers who hold tor a fixed term, and
with regard to these only during the ses
seems. in another section, coniers upon the
President the power to suspend during the
recess of the Senate, any ciVa officer Of TIE
Government, except Judges of the Federal
courts. and to designate Il suitable person
to perform the duties Of the office The
questions, however, which have been exer-
cising the minds of the Republican Sena-
ators ara said to bave been first, whether
the res ric'ion upon the Presidents power
of removal as regards officers OF fixed ten
ures is not to be extended by Implication
to officers of indefinite renures; and, sec
ond, whether the incumbent Of any Office,
who may have been removed by the Pres
ldent during the recess of the Senate, will
not be entitled to resume his office upon
the reassembling of that body.
Interpreted by the ordinary rules for the
construction of statutes and there would
not seem to be any ground at all upon
which to base the implied extension OF
the restraining provisions of tenure-of-of-
fee act which is contended for. II is q
leading maxim in the construction OF
statutes, "erpressio unius erciusio est alter
ius," and thus by the express restrict a
Of the power to remove officers of fzed
tenures, the authors of the tenure -of-office-
act in effect conceded his unlimited power
of peremptory removal with regard to Of
ficers of indetinite .enures
nc Piopcsit ou ds ~ tue VI tue
incumbent, who is removed bJ the Presi-
dent during the recess of the Senate by
the express authority If the tenure-of office
act, to resume his office upon the rsassem-
bling of the Senate, seems to he sti
more untenable. The tenure Of office act,
by comforting up n the President the
right to remove al officers during the re
cess of the Senate, in his discretion, ex-
pressly au horizes him to make u UaeGacy
in any office. Now section 3 Of the third
article OF the constitution thus defines the
tenure of the persons appointed by the
President to fill vacancies during the re.
cess of the Senate: 1.-THE President shall
have power to fill up all cacan;ies tina,
may happen during the recess of the
Senate, By granting commissions Which shall
expire at the end Of their nert session." II
will thus appear that the right of the per
son appointed by the President during
the recess to hold on regardless of the
Senate is pretty well established.
1t is probable that the Senate will find
it advisable upon sober second thought
not to cross swords with the President
but to trust to his own spirit of modera-
tion in the matter of removals.
Attorney General Garland has given an
opinion in the case of Gen. Lawton, oil
Georgia, whom the Sena'e refused to con-
firm as minister to Russia. that he labors
under no political disabilities. It is said