The Constitution is silent on the question of the authority to remove executive branch officials whose appointment required confirmation by the Senate. This silence has triggered a long history of debate about the claims of a unilateral presidential removal power weighed against the assertion that a presidential removal of officials requires Senate consent. In Federalist No. 77, Alexander Hamilton argued that the Senate’s Advice and Consent to presidential appointments extended to removals, unless Congress legislated otherwise. But James Madison, in the “Decision of 1789,” asserted that the President enjoys an implied power to remove Cabinet heads who interfered with his duty to “take Care that the Laws be faithfully executed.” At the same time, Congress recognized limits on the President’s removal power.
The celebrated “Decision of 1789,” which ran from May 19 to July 1, represents one of the most thorough, indeed, penetrating examinations of the nature of implied power in the history of congressional debates. The debate, conducted by the First Congress, virtually an ongoing session of the Constitutional Convention because so many of its members were delegates in Philadelphia, runs some 200 pages in the legislative record. Madison initiated the exploration of the removal power with a proposal to create three executive departments: Foreign Affairs, Treasury, and War. Each department head would be appointed by the President, with the advice and consent of the Senate, and “removable by the President.” William Smith of South Carolina objected to giving the President the sole power of removal. In reply, Madison articulated what became the chief rationale for an executive removal power: the President would be made more accountable by when vested with the authority to remove officials who were engaged in the enforcement of the laws. Indeed, Madison asked, how can the President be held to the duty to “take Care that the Laws be faithfully executed” if he could not remove those who would thwart performance of his constitutional responsibilities? The rationale became all the more comprehensible, indeed, more forceful, later in the Convention when the Framers, engaged in a discussion about impeachment, agreed that the failure to “faithfully” execute the laws would warrant impeachment. Theodorick Bland wanted the removal power shared with the Senate to make it consistent with the appointment process, but the House rejected his motion.
Madison’s rationale proved persuasive to his colleagues in the House, but the decision was a difficult one. Members wondered whether the proposal to vest the President with the removal power would concentrate too much authority in the office. In the Senate, for example, Vice-President John Adams broke a tie vote to preserve the President’s removal power. Votes on executive removal of the other department heads were just as close, including a 9 to 10 vote on a motion to deny the President’s power to remove the Secretary of War. Following Madison’s approach, the legislation creating the departments of Foreign Affairs, War and Treasury acknowledged the removal power of the President: subordinate officers would assume charge and custody of all records whenever the Secretary “shall be removed from office by the President of the United States.”
From the beginning, presidents exercised their authority to remove officials. President Washington, for example, secured the resignation of Edmund Randolph as Secretary of State in 1795 after an intercepted letter implied that that Randolph would pursue a pro-French policy in exchange for a bribe, an act that would have warranted impeachment. Washington also removed 17 officials whose appointments had won the advice and consent of the Senate. President John Adams was the first to remove a Cabinet official without going through the formalities of a resignation. Adams was incensed by Secretary of State Timothy Pickering’s interference with his policy toward France, as well as his failure to support Adam’s nomination of his son-in-law for adjutant general, and fired him. Adams removed 19 other civil officers as well.
The “Virginia Presidents,” in addition to Washington, also removed several officers from their posts. In a move that reignite old partisan fires, and led to a landmark ruling, United States v. Smith (1806), Thomas Jefferson actually removed John Adams’ son-in-law, Col. William Smith, surveyor of the port of New York, for taking part in a plot against Spanish possessions in South America, a violation of U.S. law. In the Smith case, as we observed in our discussion of the War Clause, Col. Smith had falsely claimed that President Jefferson had authorized his military expedition. Justice William Paterson, a delegate to the Constitutional Convention, was riding circuit and presided over the case. He said that even if the President had authorized the military hostilities, such orders were legally and constitutionally insufficient, since only Congress may authorize the initiation of military action and, in any case, the expedition violated the U.S. Neutrality Act. Jefferson was active in removing officials during his to terms in office. His removal of 109 officers including Adams’ midnight judges at the end of his term, and several lawyers and collectors of customs. James Madison fired his Secretary of State, Robert Smith, for incompetence, stating that whatever talents Smith had, he did not “possess those adapted to his station.” During the War of 1812, President Madison also obtained, under pressure, the resignation of Gen. John Armstrong as Secretary of War, after Armstrong had failed to prepare the capital against the arrival of British troops and Washington was occupied and sacked. All told, Madison removed 27 officials, most of them customs collectors. James Monroe also removed 27 officials. One-third of them were from the foreign service and one-third collectors of revenue.
A storm of controversy swirled about the removal power in 1833 when President Andrew Jackson fired Secretary of Treasury, William J. Duane, for refusing to remove funds from the Bank of the United States and deposit them in state banks. As President, Jackson established the principle of rotation in office on partisan grounds, a policy famously portrayed in his slogan, “to the victor belongs the spoils.” It has been calculated that fewer than one-tenth of the lower ranking officials were removed by Jackson, belying the proposition that he engaged in wholesale removals of officers. Jackson’s removal of Secretary Duane placed him on a collision course with Congress. While Congress raised few objections to presidential removals of officials in the war and foreign affairs departments over the decades, it tended to view the treasury secretary as its agent. For example, Congress delegated authority to the Secretary—not the President—responsibility for placing public funds either in national banks or state banks. Jealous of its power, the Senate, in 1834, censured Jackson for the removal of Duane. The Whig-dominated Senate Resolution concluded that Jackson had “assumed upon himself authority and power not conferred by the Constitution and laws, but in derogation of both.” Jackson replied, forcefully, that he possessed the authority of “removing those officers who are in aid to him in the execution of the laws.” Three years later, the Senate, with a different partisan set of characters, expunged the censure resolution from its record. Jackson resented the legislative punishment for the rest of his life.
But the story of retaliation continued. After removing Duane, President Jackson appointed Roger B. Taney during a recess appointment, and Taney implemented Jackson’s bank policy. When it reconvened, the Senate retaliated by blocking Taney’s appointment as Secretary of Treasury, forcing him to give up his post. Making matters worse—for Taney—the Senate then rejected his nomination for a seat on the Supreme Court. In 1836, a reconfigured Senate, not only expunged the censure, but also approved Jackson’s re-nomination of Taney to the High Court.
The issue of the removal power was subjected to heightened debate during and after the Civil War. During the war, for example, Congress passed the Currency Act of 1863, created the office of Comptroller of the Currency, giving the officer a five-year term and authorizing his removal only with the consent of the Senate. In 1864, Congress enacted the Consular and Diplomatic Appropriation Act, which required the President to submit to Congress his reasons for removal of consular clerks.
In the weeks and months following the conclusion of the Civil War, Congress passed legislation to protect its Reconstruction policies and removal power from President Andrew Johnson, who was at odds with the Radical Republicans, who controlled the legislature. The enactment of the Command of the Army Act of 1867 provided that “the General of the Army shall not be removed, suspended, or relieved from command, or assigned to duty elsewhere than at said headquarters, except at his own request, without the previous approval of the Senate.” This measure reflected congressional power under Article 1 of the Constitution to raise armies and navies and govern the armed forces of the United States. On the same day, Congress passed the Tenure of Office Act, one of the most visible and contentious statutes passed by Congress in the history of American politics. The legislation provided that the heads of certain departments, including the Secretary of War, would hold office during the term of the President by whom they had been appointed and for one month thereafter, subject to removal by consent of the Senate. It also provided that “every person holding any civil office to which he had been appointed by and with the advice and consent of the Senate . . . shall be entitled to hold such office until a successor shall have been in like manner appointed and duly qualified.” During a Senate recess, the President could suspend an official for reason of misconduct in office, criminal activity, incapacity, or legal disqualification, but he would be restored to his office if the Senate refused to endorse the President’s action. Both the Command of the Army Act and the Tenure of Office Act were passed over Johnson’s veto.
Secretary of War Edwin Stanton was at odds with Johnson, and proved to be a disruptive voice in Johnson’s Cabinet. Johnson had hoped Stanton would resign over their policy differences, but he refused. Johnson then suspended Stanton, but the Senate refused to support the President. As a consequence, Johnson proceeded to remove Stanton from the cabinet, with the hope that the constitutionality of the Tenure of Office Act would be reviewed in court and that he would prevail. There was no litigation on the matter, as Johnson had hoped. As it happened, Ulysses S. Grant, installed by President Johnson as the interim Secretary of War, and Grant’s successor, permitted Stanton to regain his office. Johnson’s violation of the Tenure of Office Act, led the House of Representatives to impeach him. In the Senate trial, Johnson escaped removal by just one vote.
Tensions surrounding the issue of the removal power were heightened in 1885-1886 when President Grover Cleveland suspended several hundred officials. Cleveland contended that the power to remove and suspend was vested in the President. This confrontation led Congress to repeal the Tenure of Office Act in 1887.
Judicial decisions in the 20th Century initially recognized congressional authority to specify in statutes various grounds for removal of officials, which limited the President’s removal power. In Shurtleff v. United States (1903), the Court held that Congress might restrict the President’s removal power by identifying causes for removal. But the Court did recognize a presidential removal power in the absence of legislative restrictions. In Wallace v. United States (1922), Chief Justice Taft held that “at least in the absence of restrictive legislation, the President, though he could not appoint with the consent of the Senate, could remove without such consent in the case of any officer whose tenure was not fixed by the Constitution.”
Chief Justice Taft, however, changed his mind in Myers v. United States (1926), in which he declared that the power to remove officers of the United States appointed by the President and confirmed by the Senate “is vested in the President alone” as part of the executive power. It is not subject to the consent of the Senate nor can it be made so by statute. Taft, like Madison before him, reasoned that the President’s duty to faithfully execute the laws required an ability to hold subordinates accountable through the threat of removal. But Taft swept too broadly, and committed historiographical errors, in assigning an exclusive power of removal to the President. Madison, in the course of the Decision of 1789, had been persuasive in arguing that the President’s removal power was limited to those involved in enforcing laws. Manifestly, not all officials are engaged in the enforcement of laws—an oversight that undercuts Taft’s assertion of an exclusive presidential power of removal. Taft erred, as well, in his claim that the Decision of 1789 involved the removal of all executive officials. That debate, however, was limited to the removal of the Secretary of Foreign Affairs. Madison, moreover, had argued that some officials, including the Comptroller of the Treasury, possessed quasi-legislative and quasi-judicial duties, and that their tenure could thus be protected by Congress. Madison’s reasoning about congressional control of the removal of officials with duties reflective of a mixture of legislative and judicial duties, would be embraced by the Supreme Court a decade later in Humphrey’s Executor v. United States (1935).
In Myers, three Justices—Oliver Wendell Holmes, Louis Brandeis and James McReynolds—filed important dissents. Holmes, in a three -paragraph dissent, pointed out that Congress had the power to create offices, and to abolish them, as well as the authority to establish terms of office and salaries, and shape the department conditions and regulations through legislation. Holmes said Taft’s arguments were “ a spider’s webs, inadequate to control the dominant facts.” Brandeis, in a 41-page dissent, studded with rich footnotes, described how Congress had often fixed the tenure of inferior offices and limited the President’s removal power. McReynolds noted that Congress had passed many statutes “vigorously” asserting “its right to restrict removals.” He added, powerfully, that there had been “no common executive practice based on a contrary view,” and said Taft’s assertion of an exclusive presidential power of removal “revolutionary.”
Taft’s overreach in Myers was scaled back by the Court in Humphrey’s Executor, in which the Court held that Congress does have the power to limit the President’s removal power over commissioners with quasi-judicial and quasi-legislative powers. Humphrey’s thus protected the independence of regulatory agencies. In Wiener v. United States (1958), Court went further and emphasized that such officials are insulated from arbitrary removal, even in the absence of a statutory provision governing their tenure in office. Subsequent judicial decisions have held that the removal of subordinates must adhere to agency procedures of due process.