¹ Among these are the Civil Service Commission, the Interstate Commerce Commission, the Federal Reserve Board, the Federal Trade Commission, the United States Shipping Board, the United States Tariff Commission, the Federal Power Commission, the Inland Waterways Corporation, and the Federal Radio Commission

² See U. S. Comp. St. (1918), §8563; ibid. (1925), §8563.

³ See 42 Stat. at L. 858.

⁴ Cf. Hart, James, Ordinance-Making Powers of the President, 265–275Google Scholar.

⁵ Because the ordinary trial judge and jury do not have the technical knowledge, and, since these courts have “general jurisdiction” and lack fact-finding staffs, they are not equipped to acquire such technical knowledge.

⁶ For support of this statement, see Hearings Before the Select Committee on Investigation of the Tariff Commission, U. S. Senate, 69th Cong., 1st. Sess. (1926), espec. Pt. I, 66–67; Pt. III, 361; Pt. IV, 775–776. The tariff act of 1922 created a relationship between the President and the Commission which made it possible for him to regard it as a mere bureau. The results are set forth in the excellent public document cited.

⁷ W. A. Robson, Justice and Administrative Law, emphasizes the importance of the “judicial mind” in the exercise of quasi-judicial functions. See the present writer's review of Robson, in this Review, vol. 22, p. 987Google Scholar. What is the judicial “habit of thought?” It seems to the writer that Mr. Robson speaks too glibly of “impartiality.” Judicial officers are human beings who are not, and cannot become, entirely free from all opinions and prepossessions. Jurors are the only persons who possess this dubious virtue. The judicial habit of thought means rather a conscious desire to be “impartial” according to one's lights, an attitude of respect for expert opinion and cumulative experience, and a sense of detachment from the strife of conflicting interests. At its very best, it includes a willingness to reëxamine, upon occasion, one's own tacit assumptions, which takes us away from the “red tape” psychology of bureaucracy.

⁸ Recognition of this common experience is seen in the English and American (federal) provisions for tenure of judges during good behavior, and in attempts on the part of Congress to limit the President's power of removal of officers and commissioners exercising quasi-judicial functions. For example, by 42 Stat. at L. 23, 24, Congress denied to the President all power to remove the comptroller-general. See L. Rogers, The American Senate, Appendix A, for other statutory provisions. No doubt some of these attempted restrictions were based on other motives.

⁹ The Senate has in all save a few cases refrained from interfering with cabinet appointments. The French executive has not arbitrarily removed a judicial member of the Conseil d'État since 1879 (Sait, , Government and Politics of France, 388)Google Scholar. Bureau chiefs in several of our federal executive departments have a practical stability of tenure. See Macmahon, , “Bureau Chiefs in the National Administration of the United States,” in this Review, Aug. and Nov., 1926Google Scholar. Professor Robson assures us that in England political interference with quasi-judicial functions, even those entrusted to the ordinary departments, is a “bogey” (Justice and Administrative Law, 282–288). Presidents seem generally to have respected the intent of Congress and to have refrained from overt interference with the Interstate Commerce Commission. These examples are taken more or less at random, but they show the importance of constitutional mores as at times a restraining influence in modern constitutional government.

¹⁰ See Hearings cited in note 6 above.

¹¹ Cf. the wording of the tariff act of 1922 (42 Stat. at L. 858) with President Harding's letter to Mr.Culbertson, (Hearings, Part III, 361)Google Scholar and President Coolidge's interview with Mr.Lewis, (Hearings, Part IV, 775)Google Scholar.

¹² See T. W. Page, Making the Tariff in the United States; also Taussig's article reprinted in the Hearings cited above, Part I, 30 ff.

¹³ Through most of its history, to be sure, the federal government has been characterized by a centralized administration, with the President at the top as administrator-in-chief. The states in recent years have shown a marked tendency to imitate this feature. Those persons who have advocated enlargement of the governor's powers have held up the federal government as a model. But that government, under the new conditions of the twentieth century, has itself shown a tendency in the other direction, toward the creation of independent or semi-independent quasi-judicial, fact-finding, and even business, establishments. Examples, in order, are the Interstate Commerce Commission, the Tariff Commission, and the Shipping Board. This paper holds the tendency to be sound, within limits at least, and sets forth below a theory of the removal power which will allow independence of tenure to these boards and commissions. But it is to be noted at this point that the question of independence of tenure is broader than is indicated by the title of the paper, and that the theory of the removal power hereinafter set forth makes it possible for Congress to protect also the comptroller-general, and even the heads of such departments as are created to carry into execution its own powers rather than the independent, political, constitutional powers of the President. The time may come when Congress will see fit to make the Post Office Department and the Department of Agriculture and similar services independent establishments.

Whether any such officers are “inferior” or not, in practice they are so important that it is wise to leave their appointment to the President. In that event, according to the Myers dicta, Congress cannot restrict the President's power to remove them. If these dicta be accepted, Congress can regulate the tenure of office only of “inferior” officers, and only of these by taking the power to appoint them from the President. It is not likely that Congress will vest the appointment of interstate commerce commissioners in the heads of departments, though it might see fit to solve the problem of the comptroller-general by vesting his appointment in the Supreme Court. It could then control his removal, as is pointed out by Mr. Langeluttig in a recent article. It might even vest other appointments in the courts, though this would be a departure upon which Congress might not wish to embark upon a large scale. Under our theory, such expedients would be unnecessary.

Another phase of independence of tenure is, of course, related to the merit system. But even according to the dicta of the Chief Justice in the Myers case, this can be satisfactorily taken care of by vesting the appointment of officers in the classified services in department heads. Congress can then regulate tenure. Our theory would make this possible, however, even if there were a permanent under-secretary appointed by the President himself.

¹⁴ 272 U.S. 52. The reader will find not only the opinion of the Court, but the briefs and arguments of counsel on re-argument, in Sen. Doc. No. 174, 69th Cong., 2nd Sess.

¹⁵ The Chief Justice, in his opinion, said in part: “The imperative reasons requiring an unrestricted power to remove the most important of his subordinates in their most important duties must, therefore, control the interpretation of the Constitution as to all appointed by him ….. There may be duties of a quasi-judicial character imposed on executive officers and members of executive tribunals whose decisions after hearing affect interests of individuals, the discharge of which the President cannot in a particular case properly influence or control. But even in such a case he may consider the decision after its rendition a reason for removing the officer ….. The Court also has recognized in the Perkins case that Congress in committing the appointment of such inferior officers to the heads of departments may prescribe incidental regulations controlling and restricting the latter in the exercise of the power of removal ….. Congress is only given power to provide for appointments and removals of inferior officers after it has vested, and on the condition it does vest, their appointment in other authority than the President, with the Senate's consent ….. Whether the action of Congress in removing the necessity for the advice and consent of the Senate and putting the power of appointment in the President alone would make his power of removal in such case any more subject to congressional limitation than before is a question this court did not decide in the Perkins case. Under the reasoning upon which the legislative decision of 1789 was put, it might be difficult to avoid a negative answer, but it is not before us and we do not decide it.” This last is obviously a dictum, so that it is admittedly possible under the Myers opinion for Congress to regulate presidential removals, provided the Senate is willing to forego its check upon appointments. This, however, is hardly a satisfactory solution.

¹⁶ The position here taken is but an application of the approach to stare decisis outlined by Professor Oliphant in his presidential address before the Association of American Law Schools, December, 1927. See American Law School Review, vol. 6, No. 5.

¹⁷ Briefly, the facts of the case were: One Myers was appointed postmaster (first class) at Portland, Oregon, under a statute of 1876, which provides: “Postmasters of the first, second, and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate, and shall hold their offices for four years unless sooner removed or suspended according to law.” Less than three years later President Wilson removed Myers over his protest. By not appointing a successor to Myers during the remainder of the term, the President kept the Senate from having an opportunity to consent to his removal by consenting to the appointment of a successor. Myers filed suit in the Court of Claims for the remainder of his salary, and after his death the suit was prosecuted by his administratrix. The Court of Claims gave judgment against Myers, holding him guilty of laches The Supreme Court, on appeal, held he was not guilty of laches and affirmed the judgment on the ground that Myers was properly removed, the statutory provision quoted above being unconstitutional. The point is, however, that that provision contained only one type of restriction upon the removal power, and hence the case is in point only with reference to that type.

¹⁸ Professor W. W. Cook compares this show of “logic” as the supposedly sole basis of decision to the sleight-of-hand trick of extracting rabbits from a hat. Of course, the judge, unlike Houdini, is not always conscious of the step by which he puts the rabbits into the hat. Once they are in, syllogistic logic gives us an “irrefutable” answer.

¹⁹ If we are arguing the case, as in this article, we may state what we hope the rule will become. If we are asked what the law “is,” we predict what the court is apt to do in the future cases.

²⁰ For example, there seems no reason to suppose that first-class postmasters, or even postmasters in general, form a special class for the purpose of the power of removal. Again, the present writer has written this paper to urge that the conclusion that Congress may not in any way limit the President's power of removal is unnecessary, and leads to undesirable consequences.

²¹ This is precisely what the statutory provision which the Court held invalid did. Hence, on a strict application of stare decisis, this is all that the decision necessarily covers. See note 17 above. This was admitted in the brief of Solicitor-General Beck (see Sen. Doc. No. 174, 69th Cong., 2nd Sess., 69–71). Speaking of the question “in its narrower aspects,” he said: “In limine, I stress the point that it may not be necessary in the instant case to determine the broader aspects of this important question, for the statute under consideration can be held unconstitutional without assuming the absolute power of the President to remove any executive officer ….. Hitherto it has been assumed in the discussion of this question that there is no middle ground between the absolute power of the President to remove and the absolute power of the Congress to control the right of removal ….. Whether this middle ground exists need not be decided in this case, for the law now under consideration simply asserts an unqualified right of the Senate to participate in the executive function of removal. Such a law is not the declaration of a legislative policy. It is a redistribution of the powers of government.” This paper attempts to take the “middle ground” suggested by Mr. Beck.

²² Namely, guarantee by law of independence of tenure of members of federal quasi-judicial commissions.

²³ Collected Legal Papers, 180–184.

²⁴ The American Senate, 35.

²⁵ This is seen in the fact that the Chief Justice on the one hand, in his opinion for the Court, and Mr. Justice McReynolds and Mr. Justice Brandeis, in their dissenting opinions, as well as Professor Corwin, on the other hand, draw opposite conclusions from an examination of the Constitution, logic, and history. Professor Corwin's views are set forth in his little volume entitled The President's Removal Power, in the National Municipal League Monograph Series, 1927. The present paper has not attempted a reconsideration of the historical material.

²⁶ It will be noted that this is not claimed by the present paper concerning the theory of the removal power hereinafter set forth.

²⁷ See note 23 above.

²⁸ Maclay's, Journal, 114.Google Scholar

²⁹ Thus the Chief Justice says: “Mr. Madison insisted that Article II by vesting the executive power in the President was intended to grant to him the power of appointment and removal of executive officers except as thereafter expressly provided in that article.” (Italics mine.)

³⁰ Cf. Cunningham, , Textbook of Logic, 403.Google Scholar

³¹ See Willoughby on the Constitution (2nd ed., 1929), §40.

³² Cf. Senator Pepper's oral argument, Senate Document cited in note 21, p. 172.

³³ The contention here made is that, when writers say that the power of removal is an incident of the power of appointment, they really mean to say that it is the correlative of the power of administrative supervision. Otherwise, they are driven, if they seek to uphold the power of removal as residing in the President alone, to resort to a forced distinction between the power of appointment and the power of advising and consenting to appointment, and to deduce a presidential power of removal from the former only. The really significant fact in this situation is that the power of removal is deducible from a combination of clauses which, taken together, make him the administrative superior. The power of appointment is only one of these. See the text below.

³⁴ It follows from the separation of powers that Congress has considerable power to vest duties in executive and judicial officers, but that it cannot vest the performance of an act held to be executive in another department except by express authorization of the Constitution. It may be argued that if the act of removal is “executive” in character, then the opening sentence of Article II vests the power to perform it in the President. Or, from another angle, it may be argued that the net result of our theory is to allow Congress to vest executive power in officers or boards other than the President and not even responsible to him. Is not this, after all, inconsistent with the opening sentence of Article II? The answer would be affirmative if we took that sentence as a categorical absolute and apart from the whole context. But if we did that, the result would be inconsistent with a similar absolute interpretation of the “necessary and proper” clause. We are thus forced to a choice. Again, a still more absolute interpretation of the opening sentence of Article II, if we may be pardoned the bull, would enable the President to perform personally (say) “executive” authority delegated to the Interstate Commerce Commission by law. Not even the Chief Justice holds this view. We feel it a more reasonable view to hold that the said opening sentence vests the thereafter named executive powers in the President. Besides these constitutionally vested executive prerogatives, there are executive functions created by law and vested by law directly in officers who are also purely creatures of law. The authority to regulate even the tenure of such officers is found in the necessary and proper clause. This phase of executive authority is in its nature a product of legislation. In this respect the separation of powers means only that Congress is confined to making regulations, and may not take to itself the actual performance of administrative tasks; and that the courts, being confined to hearing cases and controversies, may not be given such functions by law, except as provided by the Constitution. It is only as read in connection with the opening sentences of Articles I and III that the opening sentence of Article II may be said to refer in any way to the executive function in general. That function comes into being only as created by law; but by the rule expressio unius est exclusio alterius the law-maker cannot take the function to itself. All of which merely means that the separation of powers is not the perfectly simple triangular arrangement which some theorists try to read into the Constitution.

³⁵ This is clear from Article I of the Constitution. See text below.

³⁶ A careful reading of the “necessary and proper” clause shows that the laws to be passed under it fall into two classes: (1) those to carry out the aforementioned powers of Congress, and (2) those to carry out all other powers vested by the Constitution in the government, or any department or officer thereof. Clearly Congress has more leeway under (1) than under (2).

³⁷ Cf. note 34 above.

³⁸ Cf. note 36 above.

³⁹ The distinction seems clear, in general. There is left a “margin of doubt.” This would be a disadvantage, were it not for counterbalancing advantages to be derived from the distinction. All broad distinctions leave a “margin of doubt.” Are we to stop drawing them for that reason?

We may add that if a particular service were given both types of function, the President could still remove its head at pleasure. Otherwise, Congress could use this as a means of dominating the President, let us say, in foreign relations.

⁴⁰ There is no reason for ignoring these provisions of Article I and the inferences that may be drawn from them. In view of these possible inferences, it seems a sounder construction to avoid taking either horn of the dilemma and to work out, as this paper has tried to do, a “middle ground” theory which seeks to give due weight to both Articles I and II.

⁴¹ One of the most striking things about the opinion of the Court in the Myers case is the emphasis upon the theory that this sentence is a grant of general executive power. The Court here, so far as the writer knows, takes advanced ground upon this issue so long debated. (On the general issue, see Hart, op. cit., 115–117, 192, 196, 211, 220 ff.) This is believed to be unfortunate. It leaves scope for too many deductions of presidential powers which might be unwise. One such deduction is made in the broad dicta of the Myers case.

⁴² “The executive power shall be vested in a President of the United States of America.”

⁴³ That would amount to a reallocation of powers which the Constitution itself allocates. The exact definition of these powers is ultimately a judicial question.

⁴⁴ Cf. Senator Pepper in Senate Document quoted in note 21, p. 173. Senator Pepper does not, however, make clear whether he is referring to the President's duty to obey the law or to the validity of the law when before the courts. The distinction is important. The Court in the Myers case did not pass upon the question whether the President is in duty bound to obey such a law. It merely passed upon the validity of the law relative to a private claim against the United States based upon it. The fact that the claim arose out of the President's disobedience to the law is a question for the House in bringing impeachment. We need not go into it here.

⁴⁵ Art. II, §2.

⁴⁶ Also their terms, the qualifications of their incumbents, and reasonable classifications for promotion. This the Myers opinion admits, but it holds the power of removal to be specially and peculiarly “executive.”

⁴⁷ By ipso facto invalid, we mean invalid for the very reason that they limit the otherwise unlimited power of removal.

⁴⁸ We can arrive at this conclusion without difficulty because we have not inferred the power of removal from the power of appointment taken alone, but from several presidential powers considered together.

⁴⁹ See argument of Mr. Beck, cited in note 21 above.

⁵⁰ This, at least, seems clear from the Myers decision. Whether or not we should have so argued before that decision, we must accept this as settled by it. Our thesis is that this is all that the decision does settle, or all that it must necessarily be held to have settled. The rest is a matter of guessing future decisions. See below on that point.

⁵¹ That is, the one held invalid in the Myers decision.

⁵² We are less inclined to predict that this will be upheld than that the other type of restriction will be. It may be said, however, that the fact that tenure during good behavior was granted judges does not prove that the framers meant to forbid Congress to grant it to other officers. Here is a case where the maxim expressio unius exclusio alterius does not apply. Cf. on this point Springer et al. v. Government of Philippine Islands (72 L. ed.).

⁵³ Senator Pepper, of Pennsylvania.

⁵⁴ The dissenters were Justices Holmes, McReynolds, and Brandeis.

⁵⁵ Springer et al. v. Government of the Philippine Islands (72 L. ed.), while relating to usurpation of the appointing power by the territorial legislature, employs the reasoning of the Myers case, thus showing that the majority may in all probability consider the issue settled. But it should be noted that this case is analogous to the Myers case in that the facts before the Court do not justify the broad dicta of the Myers case. There is still a possibility, as suggested in the text above, that the Court will reconsider the matter when a sharply different case is presented.

⁵⁶ See Solicitor General Beck's statement cited in Willoughby on the Constitution (2nd ed., 1929), §1000. On the general subject, see ibid., chap. 84.

⁵⁷ Such as those suggested above as permissible.

⁵⁸ It is assumed that political scientists will generally agree that the tenure of quasi-judicial officers should not, as a matter of policy, be at the mercy of a political chief.

⁵⁹ See citation in note 25 above.

⁶⁰ It is generally recognized, for example, that law review criticisms affect judicial opinion.

⁶¹ Several major objections have been urged against the theory of this paper. One is that it would tend to establish parliamentary government. We may reply that there is no such thing as parliamentary government in general. It works one way in England, where the cabinet predominates, and another way in France, where groups in the Chamber dominate the cabinet. There is a certain common element, the necessity for political solidarity between legislature and executive. This paper seeks to get certain establishments as far as possible away from the political arena. Its theory will perhaps make Congress more powerful in some ways and the President less so. But it will not, in all probability, tend to set up the political solidarity referred to. We prefer to seek the desirable course without regard to whether that course will have the remote effect suggested. We cannot predict such remote effects. Anyway, our theory protects the independent constitutional powers of the President fully as much as any other.

Another contention is that the theory herein set forth violates the “logic” of the situation created by the separation of powers dichotomy. In answer, the reader is referred to the dissenting opinion of Mr. Justice Holmes in Springer et al. v. Government of the Philippine Islands (72 L. ed.). He points out, with illustrations from the cases, that the separation of powers is not an exact absolute from which we can make simple deductions to settle all cases. This paper is a protest against the idea that we must take one or the other horn of a dilemma.

Let us add that this theory could be applied without destroying the position of the chief executive as “president” of the government as a “business concern.” He could still make his recommendations to the “board of directors,” including his budget. Mr. W. F. Willoughby has recently suggested an important distinction between a bureau like that of the budget, concerned with the running of the government as a “going concern,” and a branch like the postal department, which is itself and directly a service performing agency. It is not necessary for the President to control the latter. The real advantages of making him “business manager” come from his control of the institutional rather than the service-rendering agencies. Mr. Willoughby suggests that the eleven agencies of the former sort be grouped into one department under the President.