52 MCREYNOLDS, J., dissenting. must not be overlooked. And consideration of the complete control which Congress may exercise over inferior officers is enough to show the hollowness of the suggestion that a right to remove them may be inferred from the President's duty to "take care that the laws be faithfully executed." He cannot appoint any inferior officer, however humble, without legislative authorization; but such officers are essential to execution of the laws. Congress may provide as many or as few of them as it likes. It may place all of them beyond the President's control; but this would not suspend his duty concerning faithful execution of the laws. Removals, however important, are not so necessary as appointments. IX. I find no suggestion of the theory that "the executive power" of Art. II, Sec. 1, includes all possible federal authority executive in nature unless definitely excluded by some constitutional provision, prior to the well-known House debate of 1789, when Mr. Madison seems to have given it support. A resolution looking to the establishment of an executive department-Department of Foreign Affairs (afterwards State)-provided for a secretary, "who shall be appointed by the President by and with the advice and consent of the Senate and to be removable by the President." Discussion arose upon a motion to strike out, "to be removable by the President." The distinction between superior and inferior officers was clearly recognized; also that the proposed officer was superior and must be appointed by the President with the Senate's consent. The bill prescribed no definite term-the incumbent would serve until death, resignation or removal. In the circumstances most of the speakers recognized the rule that where there is no constitutional or legislative restriction power to remove is incidental to that of appointment. Accordingly, they thought the 23468-27-13 MCREYNOLDS, J., dissenting. 272 U.S. President could remove the proposed officer; but many supposed he must do so with consent of the Senate. They maintained that the power to appoint is joint. Twenty-four of the fifty-four members spoke and gave their views on the Constitution and sundry matters of expediency. The record fairly indicates that nine, including Mr. Madison, thought the President would have the right to remove an officer serving at will under direct constitutional grant; three thought the Constitution did not and although Congress might it ought not to bestow such power; seven thought the Constitution did not and Congress could not confer it; five were of opinion that the Constitution did not but that Congress ought to confer it. Thus, only nine members said anything which tends to support the present contention, and fifteen emphatically opposed it. The challenged clause, although twice formally approved, was finally stricken out upon assurance that a new provision (afterwards adopted) would direct disposition of the official records " whenever the said principal officer shall be removed from office by the President of the United States or in any other case of vacancy." This was susceptible of different interpretations and probably did not mean the same thing to all. The majority said nothing. The result of the discussion and vote was to affirm that the President held the appointing power with a right of negation in the Senate; and that, under the commonly accepted rule, he might remove without concurrence of the Senate when there was no inhibition by Constitution or statute. That the majority did not suppose they had assented to the doctrine under which the President could remove inferior officers contrary to an inhibition prescribed by Congress, is shown plainly enough by the passage later in the same session of two Acts containing provisions wholly inconsistent with any such idea. Acts of August 7, 1789, and September 24, 1789, infra. ⚫52 MCREYNOLDS, J., dissenting. Following much discussion of Mr. Madison's motion of May 19, a special committee reported this bill to the House on June 2. Debates upon it commenced June 16 and continued until June 24, when it passed by twentynine to twenty-two. The Senate gave it great consideration, commencing June 25, and passed it July 18, with amendments accepted by the House July 20. The Diary of President John Adams (Works 1851 ed., v. 3, p. 412) states that the Senate voted nine to nine and that the deciding vote was given by the Vice President in favor of the President's power to remove. He also states that Senator Ellsworth strongly supported the bill and Senator Patterson voted for it. These senators were members of the committee which drafted the Judiciary Bill spoken of below. It seems indubitable that when the debate began Mr. Madison did not entertain the extreme view concerning illimitable presidential power now urged upon us; and it is not entirely clear that he had any very definite convictions on the subject when the discussion ended. Apparently this notion originated with Mr. Vining, of Delaware, who first advanced it on May 19. Considering Mr. Madison's remarks (largely argumentative) as a whole, they give it small, if any, support. Some of them, indeed, are distinctly to the contrary. He was author of the provision that the Secretary shall "be removable by the President"; he thought it "safe and expedient to adopt the clause," and twice successfully resisted its elimination-May 19 and June 19. He said: "I think it absolutely necessary that the President should have the power of removing from office. . . . On the constitutionality of the declaration I have no manner of doubt." "He believed they [his opponents] would not assert that any part of the Constitution declared that the only way to remove should be by impeachment; the contrary might be inferred, because Congress may establish offices by law; MCREYNOLDS, J., dissenting. 272 U.S. therefore, most certainly, it is in the discretion of the legislature to say upon what terms the office shall be held, either during good behavior or during pleasure." "I have, since the subject was last before the House, examined the Constitution with attention, and I acknowledge that it does not perfectly correspond with the ideas I entertained of it from the first glance. I have my doubts whether we are not absolutely tied down to the construction declared in the bill. If the Constitution is silent, and it is a power the legislature have a right to confer, it will appear to the world, if we strike out the clause, as if we doubted the propriety of vesting it in the President of the United States. I therefore think it best to retain it in the bill." * *This debate began May 19 in the Committee of the Whole on Mr. Madison's motion-"That it is the opinion of this committee, that there shall be established an executive department, to be denominated the Department of Foreign Affairs, at the head of which there shall be an officer, to be called the Secretary to the Department of Foreign Affairs, who shall be appointed by the President, by and with the advice and consent of the Senate; and to be removable by the President." The words, "who shall be appointed by the President, by and with the advice and consent of the Senate," were objected to as superfluous since "the Constitution had expressly given the power of appointment in words there used," and Mr. Madison agreed to their elimination. Doubts were then expressed whether the officer could be removed by the President. The suggestion was that this could only be done by impeachment. Mr. Madison opposed the suggestion, and said: "I think the inference would not arise from a fair construction of the words of that instrument. .. I think it absolutely necessary that the President should have the power of removing from office. . . . On the constitutionality of the declaration I have no manner of doubt." Thereupon Mr. Vining, of Delaware, declared: "There were no negative words in the Constitution to preclude the President from the exercise of this power; but there was a strong presumption that he was invested with it: because it was declared, that all executive 122 52 MCREYNOLDS, J., dissenting. Writing to Edmund Randolph, June 17, 1789, Mr. Madison pointed out the precise point of the debate. "A very interesting question is started-By whom officers appointed during pleasure by the President and Senate are to be displaced." And on June 21, 1789, he advised Edmund Pendleton of the discussion, stated the four opinions held by members, and said: "The last opinion power should be vested in him, except in cases where it is otherwise qualified; as, for example, he could not fully exercise his executive power in making treaties, unless with the advice and consent of the Senate the same in appointing to office." Mr. Bland and Mr. Jackson further insisted that removal could be effected only through impeachment, and Mr. Madison replied: He ❝ did not conceive it was a proper construction of the Constitution to say that there was no other mode of removing from office than that by impeachment; he believed this, as applied to the judges, might be the case; but he could never imagine it extended in the manner which gentlemen contended for. He believed they would not assert, that any part of the Constitution declared that the only way to remove should be by impeachment; the contrary might be inferred, because Congress may establish offices by law; therefore, most certainly, it is in the discretion of the legislature to say upon what terms the office shall be held, either during good behaviour or during pleasure." Later in the day Mr. Madison discussed various objections offered and said: "I cannot but believe, if gentlemen weigh well these considerations, they will think it safe and expedient to adopt the clause." Others spoke briefly, and then, as the record recites, "The question was now taken, and carried by a considerable majority, in favor of declaring the power of removal to be in the President." The resolution was reported; the House concurred; and a committee (including Mr. Madison) was appointed to prepare and bring in a bill. On June 2 the committee reported a bill, providing for a Secretary, "to be removable from office by the President of the United States," which was read and referred to the Committee of the Whole. It was taken up for consideration June 16, and the discussion continued during five days. Members expressed radically different views. Among other things Mr. Madison said "I have, since the subject was last before the House, examined the Constitution with attention; and I acknowledge that it does not perfectly correspond with the ideas I entertained of it from the first |