Caseflicks

Supreme Court of the United States • 1926

Myers v. United States

272 U.S. 52 | 47 S. Ct. 21 | 71 L. Ed. 160 | 1926 U.S. LEXIS 35

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Takeaway

In short, Myers held that Article II gives the President exclusive authority to remove executive officers appointed with Senate confirmation, invalidating Congress’s attempt to require Senate consent for removal of a first-class postmaster.

Background

Frank S. Myers was appointed, with the Senate’s advice and consent, as first-class postmaster at Portland, Oregon, for a four-year term beginning July 21, 1917. A 1876 statute provided that first-, second-, and third-class postmasters were to be appointed and removed by the President “by and with the advice and consent of the Senate.”

In 1920, at the President’s direction, the Postmaster General removed Myers without Senate consent. Myers protested, sought an opportunity to answer any charges, and continued pursuing reinstatement through the end of his statutory term. He then sued in the Court of Claims for the salary he would have earned after his removal. The Court of Claims ruled against him, holding that he had waited too long to assert his claim. Myers’s administratrix appealed after his death.

Issues

Issue #1

Whether Myers forfeited his salary claim by failing promptly to challenge his removal.

Holding

No. Myers did not delay so unreasonably as to bar his action.

Reasoning

An unlawfully dismissed federal officer ordinarily must act promptly and effectively to assert his rights. But Myers continuously protested his removal and sought reinstatement. His request to be heard by the Senate committee could not practically be pursued until the President notified the Senate of the removal or nominated a successor, neither of which happened during three Senate sessions.

Myers waited only until the end of the congressional term before bringing suit, and he filed his petition roughly three months before his own term expired. Given those circumstances, the Court held that he had acted with sufficient diligence. The Solicitor General also conceded that laches had not been shown.

Issue #2

Whether Congress may require Senate consent before the President removes an executive officer whom the President appointed with the Senate’s advice and consent.

Holding

No. The President has the exclusive constitutional power to remove executive officers he appointed with the Senate’s advice and consent; the statutory requirement of Senate consent for removal was unconstitutional.

Reasoning

The Court began with Article II’s Vesting Clause and Take Care Clause. Vesting the executive power in one President, and charging that President to ensure faithful execution of the laws, necessarily gives the President administrative control over executive subordinates. Because the President must answer politically and constitutionally for executive administration, he must be able to remove officers in whom he no longer has confidence.

The Senate’s constitutional role in appointments does not carry over to removals. Advice and consent is an express, carefully limited check on the President’s selection of officers. The Court reasoned that extending that check by implication to removal would improperly blend legislative and executive power and would allow the Senate to retain officers whom the President must rely on in carrying out the laws.

The Court treated the 1789 debate over creation of the Department of Foreign Affairs as a highly persuasive contemporaneous construction. The First Congress, which included many Framers, understood the Constitution to recognize the President’s unilateral removal power. That interpretation was then accepted in legislation, executive practice, and judicial decisions for decades before the Tenure of Office Act of 1867.

Congress may create offices, prescribe their duties, set reasonable qualifications, establish terms, and provide compensation. But, in the Court’s view, those legislative powers do not permit Congress to control removal of officers appointed by the President with Senate confirmation. Congress’s specific authority concerning inferior officers permits it to regulate removal only when it has vested appointment in the President alone, a court, or a department head; it cannot retain Senate participation in removals while leaving appointment with the President and Senate.

The Court rejected the argument that a postmaster’s status as an inferior officer changed the result. Congress had chosen to require presidential appointment with Senate confirmation for first-class postmasters. So long as Congress retained that appointment method, it could not impose Senate consent as a condition of the President’s removal power.

The Court viewed the Tenure of Office Act, enacted amid the conflict between Congress and President Andrew Johnson, as an exceptional and politically charged departure from the original constitutional settlement. It concluded that the 1876 postal statute likewise violated separation of powers by preventing the President from removing a first-class postmaster without Senate approval. Myers’s removal was therefore valid, and the judgment against his salary claim was affirmed.

Dissents

Justice Holmes

Reasoning

Justice Holmes agreed with the other dissenters that Congress could protect Myers’s statutory tenure. The office existed only because Congress created it; Congress could abolish it, set its salary, prescribe its duration, and transfer the appointment power to another actor. In Holmes’s view, those legislative powers necessarily included authority to condition removal on Senate approval.

He rejected the majority’s reliance on broad implications from executive power and the duty to execute the laws. The President’s constitutional duty is to execute the laws Congress has enacted, including a law limiting removal. Congress’s control over the office therefore supplied the controlling constitutional fact, not an implied and unrestricted presidential removal power.

Justice McReynolds

Reasoning

Justice McReynolds maintained that the case concerned an inferior statutory officer appointed for a definite term under a law that expressly prohibited removal without Senate consent. He found no constitutional text clearly granting the President authority to disregard that restriction, and he considered an asserted inherent removal power incompatible with a federal government of limited and enumerated powers.

For McReynolds, creating an office, defining its duties, setting its compensation, and fixing its tenure are legislative functions. Although the physical act of removal may be executive, the conditions under which removal may occur are legislative. Thus, Congress could condition Myers’s tenure on Senate consent to his removal just as it could prescribe qualifications and terms for the office.

He read the 1789 congressional debate much more narrowly than the majority. In his view, it established only that the President could remove officers serving at will when neither the Constitution nor a statute imposed a restriction. It did not establish that the President could override a statute fixing a term or expressly limiting removal. He emphasized that the same First Congress enacted statutes that protected some officers’ tenures or expressly authorized removal, showing that it did not understand presidential removal power as unlimited.

McReynolds treated Marbury v. Madison as directly supporting Congress’s authority to protect a fixed term. Chief Justice Marshall had stated that an officer appointed for a five-year statutory term held legal rights beyond the President’s unilateral power to revoke. McReynolds also read later cases, including Ex parte Hennen, United States v. Perkins, Reagan v. United States, and Shurtleff v. United States, as recognizing that removal follows appointment only absent a constitutional or statutory restriction.

He warned that the majority’s theory would give the President undefined and potentially boundless executive authority. Congress could itself have vested appointment of all inferior officers in department heads or courts and restricted their removal; that constitutional possibility, he argued, disproved the claim that unrestricted presidential removal of those officers was indispensable to faithful execution of the laws.

Justice Brandeis

Reasoning

Justice Brandeis emphasized the narrowness of the question: whether Congress may require Senate consent to removal of inferior civil officers appointed for fixed terms with Senate consent. He did not address the President’s authority over military officers, high political officers, or the power to suspend an officer. Because the statute expressly required Senate consent and Myers’s successor was not confirmed during his term, the statute plainly barred the purported removal.

In Brandeis’s view, the President’s power to appoint and remove inferior statutory officers comes immediately from Congress, not from an uncontrollable executive prerogative. Congress has constitutional authority to create inferior offices and prescribe their tenure; prescribing tenure necessarily includes defining the conditions under which the office ends. Article II does not expressly deny Congress that authority.

The Take Care Clause did not justify an implied, unlimited removal power. The President’s duty is to execute the laws with the offices, appropriations, and limits Congress has lawfully provided. At most, Brandeis reasoned, the President might possess an inherent power to suspend an officer temporarily to address urgent disloyalty or neglect; unrestricted removal of an inferior fixed-term officer was not necessary to effective government.

Brandeis relied heavily on sustained historical practice. Congress had repeatedly restricted removal, including through statutes requiring Senate consent, removal only for specified causes, notice and hearing, or stated reasons. Presidents had signed and generally observed those laws. He viewed this longstanding course of concurrent action by Congress and the Executive as a powerful constitutional gloss supporting the statute.

He also interpreted the 1789 decision as resolving only the absence of a Senate role in removal when Congress had not legislated otherwise. It did not decide that Congress lacked power to confer such a role for inferior offices. Brandeis concluded that separation of powers was designed not merely for administrative efficiency but to prevent arbitrary power, and that Congress could validly protect Myers against an unsupported presidential dismissal.