Article 2 of the Constitution, which gives the President the power to appoint government officials, does not explicitly provide the President with the power to remove officials. In Federalist Paper No. 77, one of a series of newspaper articles written in 1788 in support of the Constitution, Alexander Hamilton argued that the Senate's power of “advice and consent” to Presidential nominations also extended to removals unless Congress legislated otherwise. But James Madison, in the 1789 congressional debates over a removal clause in the law creating the Department of Foreign Affairs, argued for an unrestricted Presidential removal power. When Congress created the War and Treasury Departments, it followed Madison's argument and acknowledged the removal power of the President.
George Washington secured the resignation of Edmund Randolph as secretary of state in 1795. An intercepted letter implied that Randolph would pursue a pro-French policy in exchange for a bribe; when Washington showed the letter to Randolph, he promptly submitted his resignation. All told, Washington removed 17 officials whose appointments had been approved by the Senate.
John Adams was the first President to remove a cabinet secretary without the formality of a resignation. Incensed at Secretary of State Timothy Pickering's interference with his French policy and his failure to support Adams's nomination of his son-in-law for adjutant general, Adams wrote to Pickering asking for his resignation. When Pickering did not respond, Adams fired him with an abrupt written notice. Adams also removed 20 other civil officers.
President Thomas Jefferson fired John Adams's son-in-law, Colonel William Smith, surveyor of the Port of New York. Smith had taken part in a plot against Spanish possessions in South America, a violation of U.S. law. Jefferson removed a total of 109 officers. James Madison fired his secretary of state, Robert Smith, for incompetence, claiming that whatever talents Smith had, he did not “possess those adapted to his station.” Madison also obtained the resignation under pressure of General John Armstrong as secretary of war after Armstrong failed to prepare the capital against the arrival of British troops during the War of 1812 and the city was sacked.
For the most part the removals by Presidents through the 1820s involved wrongdoing in office, not partisan politics. In 1820 Congress had little problem with Presidential removals: it passed a Tenure of Office Act specifying fixed four-year terms for officers handling funds but made them removable at the pleasure of the President.
Controversy erupted in the administration of Andrew Jackson, who established the principle of rotation in office on partisan grounds. Jackson's removal of his political enemies was abrupt, arbitrary, and unrestrained by law. But in all nonpolitical cases involving employees, it was Jackson's common practice to provide them with notice and the elements of due process, similar to a fair trial, and to discharge them only after a complete investigation of allegations.
Jackson was the first President to claim the power to remove cabinet officials simply for disagreeing with Presidential policy, if they did not follow his orders. By law, the Treasury secretary had the responsibility of depositing the funds of the United States in such banks as he saw fit. Jackson asked Secretary of the Treasury William J. Duane to remove the funds from the Bank of the United States and deposit them in state banks. Duane declined to do so, arguing, “Congress confers discretionary power.” Jackson responded, “A secretary, sir, is merely an executive agent, a subordinate.” When Duane defied Jackson's orders, he was fired.
The opposition Whigs argued against an unrestricted Presidential right of removal. Henry Clay offered a Senate resolution in 1834 stating, “The Constitution of the United States does not vest in the President the power to remove, at his pleasure, officers under the Government of the United States, whose officers have been established by law.” Instead, Congress would legislate the length of their service. Clay further proposed a law requiring that the power of removal be exercised only “in concurrence with the Senate,” but Jackson used his influence to defeat this and other similar proposals.
The Whig-dominated Senate did manage to pass a Resolution of Censure against Jackson, who sent a “Response” claiming that he possessed the right of “removing those officers who are to aid [him] in the execution of the laws.” The Whigs put in their 1836 platform the notion that Congress possessed sole removal power. One of their Presidential nominees, William Henry Harrison, pledged never to remove a Treasury secretary without approval of Congress.
During the Civil War, Congress established the office of comptroller of the currency, specifying a five-year term and authorizing his removal only with the consent of the Senate. In 1864 Congress passed a statute requiring the President to submit to Congress the reasons for removal of consular clerks in the Department of State. An 1865 law gave military officers dismissed by the President the right to apply for a trial.
In the aftermath of the Civil War, Congress passed two measures to protect its Reconstruction policies from President Andrew Johnson, who wished to pursue policies favorable to the Southern states. The Command of the Army Act, passed on March 2, 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.” The Tenure of Office Act, passed the same day, provided that “every person holding any civil office to which he has 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 acts were passed over Johnson's veto.
After Congress adjourned, Johnson asked Secretary of War Edwin Stanton to resign. When Stanton refused, in August 1867, the President, seemingly acting in accordance with the laws, suspended him and authorized General Ulysses S. Grant to act as secretary of war. Johnson had out-maneuvered Congress, using a provision in the law that permitted him to suspend a department secretary until the Senate reconvened. But when the Senate did so, it reinstated Stanton. Now Johnson acted for the first time in apparent violation of the Tenure of Office Act. He removed Stanton while the Senate was in session and appointed General Lorenzo Thomas secretary of war. The House then voted articles of impeachment against Johnson.
At his Senate trial Johnson argued that the Tenure of Office Act was unconstitutional. He also argued that even if the act were constitutional, his removal of Stanton did not violate it. Stanton had been appointed by Lincoln; Johnson argued that the law could not prevent a President from removing an official nominated by his predecessor but covered only those nominations he himself had made. Johnson was tried in the Senate and escaped removal by just one vote, and Stanton surrendered his office. Congress did not repeal the last provisions of the law until 1887.
In the landmark 1926 Supreme Court case Myers v. United States, Chief Justice William Howard Taft recognized the removal power as a Presidential power and struck down all congressional efforts to pass legislation about the Presidential removal power.
In Humphrey's Executor v. United States (1935), the Court retreated somewhat from the Myers case. It distinguished between officials doing executive tasks and those engaged in “quasi-legislative” and “quasi-judicial” ones. Quasi-judicial officials, such as commissioners of regulatory agencies like the Federal Trade Commission, could be insulated from the Presidential removal power by legislation. Moreover, in Wiener v. United States (1958) the Supreme Court held that Presidential removal power did not extend to such officials even when Congress has not protected them by law.
The courts and Congress have also protected special prosecutors and independent counsels who investigate high-level scandals involving the Presidency, such as the special prosecutor in the Watergate investigation. President Richard Nixon ordered Attorney General Elliott Richardson to dismiss Archibald Cox for pursuing the inquiry further than Nixon wished. Richardson, who had given the Senate his word that he would not do so except for “extraordinary improprieties on his [Cox's] part” and who had issued regulations protecting Cox, promptly resigned. The deputy attorney general, William Ruckelshaus, was ordered to fire Cox, and when he refused, Nixon fired him, too. Finally, Solicitor General Robert Bork, who had become acting attorney general, fired Cox.
In Nader v. Bork (1973) a district court agreed that Cox had been illegally removed from office because the removal violated the department's regulations regarding the special prosecutor. Subsequently, the Ethics in Government Act of 1978 prohibited the removal of an independent counsel (or special prosecutor) except for extraordinary impropriety, physical disability, mental incapacity, or “any other condition that substantially impairs the performance of such special prosecutor's duties.”
See also Appointment power; Censure; Executive branch; Executive power; Impeachment; Independent counsel; Jackson, Andrew; Johnson, Andrew
Sources
- Edward S. Corwin, The President's Removal Power under the Constitution (New York: National Municipal League, 1927).
- Louis Fisher, Constitutional Conflicts between President and Congress (Princeton, N.J.: Princeton University Press, 1985)
