Page:The Green Bag (1889–1914), Volume 10.pdf/193

all participation in the appointments. It of the Senate to appoint a successor to him. has been seen that the President has the It was the purpose of Congress, in the re power to fill up all vacancies that may hap peal of the tenure of office sections of the pen during the recess of the Senate, by Revised Statutes, to again concede to .the granting commissions which shall expire at President the power of removal if taken from the end of their next session. Therefore, him by the original tenure of office act, and, by reason of the repeal, to thereby when the Senate is not in session, the Presi enable him to remove an officer when in his dent, if he should choose to do so, may re move any officer, and appoint another in his discretion he regards it for the public good, stead, who will hold the office till his successor although the term of office may have been is appointed. The President is allowed the limited by the words of the statute creating whole of the time occupied by the next ses the office." Although this decision is ad sion of the Senate in which to make a nom verse to the writer's contention, it is based ination; and he may, if he should think wholly upon the practice of the Government proper, delay to do so until the last day of in regard to removals from office during the the session, when, if the Senate withhold period intervening between the decision of its consent to the appointment, he has only the first Congress, thereon in the year 1789, to wait till it has adjourned, when he may and the passage of the first tenure of office reappoint the person so rejected, who will act, March 2, 1867; and no attempt was continue to hold as before. In this manner, therein made by the Court to show that the the wishes of the Senate may be totally dis construction placed upon the Constitution regarded and set at defiance. by the first Congress was in accordance It appears, therefore, that in the light of with the original intention of its authors. the previous reasoning and of the authorities The opinion therein, which was delivered above cited, it has been clearly established by Mr. Justice Peckham, contains the fol that the power of removal of superior officers lowing sentence which appears on page 335 of the above mentioned volume : " It is un under the Federal Constitution does not re necessary for us in this case to determine the side in the President alone, and that it can not be constitutionally exercised by him important question of constitutional power except by and with the concurrence of the above stated." In the foregoing discussion, the writer has conceded that all that the Senate. Court has said in regard to the practice re Since the above article was placed in the ferred to is correct; but he has contended, hands of the editor of this magazine, the and still contends, that it is not justified by writer has carefully examined the case of the language of the Constitution, that being Parsons vs. United States, decided by the the only proposition which he has en Supreme Court on May 24, 1897, ar>d re- deavored to establish; and he finds nothing ported in Vol. 167, U. S. Reports, page in the language of the Court above quoted 324, in which the power of removal from which causes him to doubt the correctness office is again considered. The court there of the opinion which he had previously held that " The President has the power to formed and expressed, which is that the remove a District Attorney of the United Constitutional Convention intended the States when such removal occurs within four Senate to be a necessary part of the removing, as well as of the appointing, years from the date of the attorney's ap pointment, and, with the advice and consent power.