National Republican. (Washington City (D.C.)) 1872-1888, 1886-02-09
TIE PRESIDENT AND SENATE.
The Discretionary Power of the Prosi,


matter of removals from office, IL is desirn-
BILE to examine the latest decisions of the
supreme Court which bear upon this ques-
ton.
In the noteworthy case Of Blake VS.. the
United States (Otto's Supreme Court Re-
ports, vol. xiii, PIP. 227.237 II was ruled by
the court that the President has the power,
at any time, to remove an officer Of the
army and navy peremptorlly by the ap-
pointment OF his successor by and with the
advice and consent of the Senate. Under
the existing law these officers cannot he
displaced IN time of peace except in pursu-
ance OF the sentence of n court-martial, or
in Communication thereof, unless this dis
placement be effected with the express CON
sent of the Senate.
The opinion incidentally expressed rs TO
the tenure Of certain civil offices is Of direct
pertinence to the cases now In question.
Mr.. Justice Harlan, who delivered the
opinion, said:
Upon the general question of the right to ro.
move from Office Us incident to the power to
appoint, cx parte Herman l3 Pet, 35O) Is in.
structive. That case involved the authority Of
district Judge ofthe United states to remove
clerk and appoint some one in his place,
The court, among other things, said;
All offices, the tenure of which Is not fixed
by the constitution or limited by law must be
hcld either during good behavior or (which Is
the same thing in contemplation of law dur.
ing inc lie OF inc incumbent, or must be held
at the will aud discretion of some department
pleasure
II cannot for moment be admitted thnt IL
was the intention of the constitution that those
Offices which are denominated inferior offices
should be held dnring life, and, II removable
at pleasure; by whom Is such removal to be
made? In the absence OF all constitutional pro-
visions or statutory regulations, 1t would seem
to be sound aud necessary rule to consider
the power of fremoval as incident to the power
OF appointment.
This power OF removal from office was n sub.
iect much disputed, and upon which great
diversity Of opinion was entertained in the
early history of the government This related
however, to the power of the President to re.
move officers appointed with the concurrence
OF the senate; and the great question was
whether the removal was to be by the Pres-
dent alone or with the concurrence OF the Sen.
ate, both constituting the appointing power.
No one denied the power of the President and
senate jointly TO remove when the tenure OF
the Office was not fixed by the constitutions
which was full recognition of the principle
that the power of removal was incident to the
power disappointment. But II was very early
adopted ms the practical construction of tho
constitution that this power was vested in the
President alone, aud such would appear to
have been the legislative construction of the
constitution; l Kent Com. 800; Story Const
.lth cd 4 scets. lj3I-l5lO and notes; Marshall,
Lite Of Washington, 1862; Sergeant, Const Law
3i2; Rawle, Const., c. II.
In Du Barry's case a Opn., G1o) At
torney General Clifford said that ''the at
tempt to limit the exercise of the power of
removal to the executive officers in the
civil service found no support In the lam
guage Of the constitution, nor in any Judi
cial decisions; and that there was no foun1a-
tion In the constitution for any distinction
IN this regard between civil and military
ofllcersn
suclSwas the established practice in the
executive department, and such the recog-
nized power Of the President up to the
passage of the army appropriation act of
July II, 1866, c. 116 IA Stat, 92,. This act
repealed the 18th section of an act passed
July II, 1859, c. 200 (l2 Stat, 596) ex-
prcssly authorizing and requesting the
President to discharge from the military
service any officer for any cause, (which, In
his judgment, either rendered such officer
| unsuitable for or whose dismission would
promote the public servlce.n Mr.. Justice
Harlan cites, with approval, the opinion of
Attorney General Devens in reference to
this section % Opin., 42l) that $50 far as
1t gives authority to the President it is
simply dcclaratory of the long.establshed
law. 1t is probable that the force of the
act is to be found in the word requested
by which II was intended TO re-enforce
strongly this power in the hands Of the
President at great crisis of the state"
The act of July II, 1866, not only repealed
provided (sectiOn 81 that no officer in the
military or naval service shall, In time of
peace, be dismissed from the service except
upon and in pursuance of the sentence of Il
cOurt'martlal to that effect or In commuta-
tion thereof. But Justice Harlan holds
that this enactment does not mean that
army and navy officers 'shall not, in time of
peace, be dismissed from the service under
any circumstances or for any cause or by
any authority whatever except in pursuance
OF the sentence Of q ceurtmartial to that
effect OF in communication thereof He in
terpfets the provision to mean that the
President alone shall not exercise such
power OF dismissal In time of peace, except
in pursuance OF q court-martial sentence to
that elect or In cOmmutation thereof. By
the passage Of this fifth section, he SAYS
''There was, as we think, no intention to
deny or restrict the power Of the President,
by and with the advice and consent of the
Senate, to displace them (oflccrs of the
army and navyl by the appointment Of
others in their place.n
This ruling Is doubtless in accord with
the actual intention Of Congress at the time
of the passage of the act, as Mr.. Justice
Harlan shows in his resume of the political
history Of the period. His decision was de.
| liyered in October, 1850, and must be ac-
| cepted as the existing law on the subject.
The question, of course, arises as to the
| difference, II any, which exists between
the power of the President TO remove execu-
| tive officers in the civil service and officers
| In the army and navy. II can hardly be
doubted seriously that prior to the passage
| OF the acts of March 2, 1865, and April B,
| 1863, regulating the tenure of certain civil
offices and amending said act, the President
| was empowered to remove executive officers
| in the civil service at his discretion. IL Is
| equally obvious that whatever may have
been the intent Of section 1867, Revised
Statutes, the following sections virtually
confer upon the President the power of re-
moving from Office during the recess of the
Senate any person included under the act
without consulting the Senate. The dis
missal may be termed suspension techni-
| cally, but II is in reality peremptory and
final removal If the President so wills.
II the Senate now sitting refuse to con-
firm any Of his nominations to fiji a vacancy
SO made, his appointee will serve and enjoy
all the pay and emOluments attaching to
the Office from the date of his qualifying,
IN accordance with law, until the close of
the present session. From that
time on, however, the Office so
occupied will ''remain in abey-
ance, without any salary, fees, or emolu-
ments attached thereto, until it Is filled by
| appointment thereto by and with the ad-
vice and consent of the Senate. ."-( Section
l'OJ, hcNlScu STATUTES
| Though the President can thus remove
from office, by right of the power Of sus-
| pension conceded to him, without consult
| ing the Senate, If he so chooses, It is equally
| clear that the Senate have the right TO give
advice on the subject of removals and ap.
| pointments, and that they are distinctly
directed by law TO do so. What will their
advice be worth, and on what will IL be
founded, If the occasion Of the vacancy Is
not clearly understood, as well as the mere
fact of its existence? If a certain removal
was violation of the spirit Of the statute
lsection l7G7), though not Of It's technical
construction, have not the Senate the right
and to advise the President Of their CON
clusonsY Is II not their obvious duty to
examine the case fully to so determine and
| to so advise II the facts warrant this CON
clusionY How can they make this examina-
| tlon II the papers bearing upon the case are
NFiN a.