The Constitution of the United States of America: Analysis and Interpretation Part 92

[292] 12 Fed Reg. 1935.

[293] Shoemaker _v._ Unite States, 147 U.S. 282, 301 (1893).

[294] United States _v._ Germaine, 99 U.S. 508 (1879) is the leading case. For further citations _see_ Auffmordt _v._ Hedden, 137 U.S. 310, 327 (1890). The Court will, nevertheless, be astute to ascribe to a head of department an appointment made by an inferior of such head. Nishimura Ekiu _v._ United States, 142 U.S. 651, 663 (1892). For the view that there is an intrinsic difference between a "public office" and a "public employment" _see_ Mechem, Public Officers, pp. 3-5.

[295] Ex parte Hennen, 13 Pet. 230, 257-258 (1839); United States _v._ Germaine, 99 U.S. 508, 509 (1879). The statement on the point is in both instances obiter.

[296] Ex parte Siebold, 100 U.S. 371, 397 (1880).

[297] "They [the clauses of the Const.i.tution] seem to contemplate three distinct operations: 1st. The nomination. This is the sole act of the President, and is completely voluntary. 2d. The appointment. This is also the act of the President, and is also a voluntary act, though it can only be performed by and with the advice and consent of the Senate.

3d. The commission. To grant a commission to a person appointed, might, perhaps, be deemed a duty enjoined by the const.i.tution. 'He shall,' says that instrument, 'commission all the officers of the United States.'"

Marbury _v._ Madison, 1 Cr. 137, 155-156 (1803). Marshall's statement that the appointment "is the act of the President," conflicts with the more generally held, and sensible view that when an appointment is made with its consent, the Senate shares the appointing power. 1 Kent's Comm.

310; 2 Story Comm. -- 1539; Ex parte Hennen, 13 Pet. 225, 259 (1839).

[298] 3 Op. Atty. Gen. 188 (1837).

[299] 2 Story Comms., -- 1531; 5 Writings of Jefferson (Ford, ed.), 161 (1790); 9 Writings of Madison (Hunt, ed.), 111-113 (1822).

[300] 286 U.S. 6 (1932).

[301] Corwin, The President, Office and Powers (3d ed.), 92.

[302] Marbury _v._ Madison, 1 Cr. 137, 157-158, 182 (1803).

[303] 12 Op. Atty. Gen. 306 (1867).

[304] It should be remembered that, for various reasons, Marbury got neither commission nor office. The case a.s.sumes, in fact, the necessity of possession of his commission by the appointee.

[305] Opins. Atty. Gen. 631 (1823); 2 ibid. 525 (1832); 3 ibid. 673 (1841); 4 ibid. 523 (1846); 10 ibid. 356 (1862); 11 ibid. 179 (1865); 12 ibid. 32 (1866); 12 ibid. 455 (1868); 14 ibid. 563 (1875); 15 ibid. 207 (1877); 16 ibid. 523 (1880); 18 ibid. 28 (1884); 19 ibid. 261 (1889); 26 ibid. 234 (1907); 30 ibid. 314 (1914); 33 ibid. 20 (1921). In 4 Opins.

Atty. Gen. 361, 363 (1845), the general doctrine was held not to apply to a yet unfilled office which was created during the previous session of Congress, but this distinction is rejected in 12 ibid. 455 (1868); 18 ibid. 28; and 19 ibid. 261.

[306] 23 Opins. Atty. Gen. 599 (1901); 22 ibid. 82 (1898). A "recess"

may, however, be merely "constructive," as when a regular session succeeds immediately upon a special session. It was this kind of situation that gave rise to the once famous _Crum_ incident. _See_ Willoughby, III, 1508-1509.

[307] 5 U.S.C. -- 56.

[308] 6 Opins. Atty. Gen. 358 (1854); 12 ibid. 41 (1866); 25 ibid. 259 (1904); 28 ibid. 95 (1909).

[309] 272 U.S. 52.

[310] 19 Stat. 78, 80.

[311] 272 U.S. 163-164.

[312] The reticence of the Const.i.tution respecting removal left room for four possibilities, _first_, the one suggested by the common law doctrine of "estate in office," from which the conclusion followed that the impeachment power was the only power of removal intended by the Const.i.tution; _second_, that the power of removal was an incident of the power of appointment and hence belonged, at any rate in the absence of legal or other provision to the contrary, to the appointing authority; _third_, that Congress could, by virtue of its power "to make all laws which shall be necessary and proper," etc., determine the location of the removal of power; _fourth_, that the President by virtue of his "executive power" and his duty "to take care that the laws be faithfully executed," possesses the power of removal over all officers of the United States except judges. In the course of the debate on the act to establish a Department of Foreign Affairs (later changed to Department of State) all of these views were put forward, with the final result that a clause was incorporated in the measure which implied, as pointed out above, that the head of the department would be removable by the President at his discretion. Contemporaneously and indeed until after the Civil War, this action by Congress, in other words "the decision of 1789," was interpreted as establishing "a practical construction of the Const.i.tution" with respect to executive officers appointed without stated terms. However, in the dominant opinion of those best authorized to speak on the subject, the "correct interpretation" of the Const.i.tution was that the power of removal was always an incident of the power of appointment, and that therefore in the case of officers appointed by the President with the advice and consent of the Senate the removal power was exercisable by the President only with the advice and consent of the Senate. _See_ Hamilton in the Federalist No. 77; 1 Kent's Comm. 310; 2 Story Comm. ---- 1539 and 1544; Ex parte Hennen, 13 Pet. 225, 258-259 (1839). The doctrine of estate in office was countenanced by Chief Justice Marshall in his opinion in Marbury _v._ Madison, 1 Cr.

137, 162-165 (1803), but has long been rejected. _See_ Crenshaw _v._ United States, 134 U.S. 99, 108 (1890). The three remaining views are treated by the Chief Justice, at some cost in terms of logic as well as of history, as grist to his mill.

[313] 272 U.S. at 134.

[314] Annals of Congress, cols. 635-636.

[315] 295 U.S. 602 (1935). The case is also styled Rathbun, Executor _v._ United States, Humphrey having, like Myers before him, died in the course of his suit for salary.

[316] 295 U.S. at. 627-629, 631-632. Justice Sutherland's statement, quoted above, that a Federal Trade Commissioner "occupies no place in the executive department" (_See also_ to the same effect p. 630 of the opinion) was not necessary to the decision of the case, was altogether out of line with the same Justice's reasoning in Springer _v._ Philippine Islands, 277 U.S. 189, 201-202 (1928), and seems later to have caused the author of it much perplexity. _See_ Robert E. Cushman, The Independent Regulatory Commissions (Oxford University Press, 1941), 447-448. As Professor Cushman adds: "Every officer and agency created by Congress to carry laws into effect is an arm of Congress. * * * The term may be a synonym; it is not an argument." Ibid. 451.

[317] United States _v._ Perkins, 116 U.S. 483 (1886).

[318] Parsons _v._ United States, 167 U.S. 324 (1897).

[319] Shurtleff _v._ United States, 189 U.S. 311 (1903).

[320] Blake _v._ United States, 103 U.S. 227 (1881); Quackenbush _v._ United States, 177 U.S. 20 (1900); Wallace _v._ United States, 257 U.S.

541 (1922).

[321] Morgan _v._ TVA, 28 F. Supp. 732 (1939), certiorari refused March 17, 1941. 312 U.S. 701, 702.

[322] _See_ United Public Workers _v._ Mitch.e.l.l, 330 U.S. 75 (1947); _also_ Ex parte Curtis, 106 U.S. 371 (1882); and 39 Op. Atty. Gen. 145 (1938).

[323] 6 Op. Atty. Gen. 220 (1853); In re Neagle, 135 U.S. 1 (1890).

[324] United States _v._ Lovett, 328 U.S. 303 (1946).

[325] Messages and Papers of the Presidents, II, 847 (January 10, 1825).

[326] _See_ 328 U.S. at 313.

[327] In this connection the following colloquy between Attorney General Lincoln and the Court in course of the proceedings in Marbury _v._ Madison is of first importance: "Mr. Lincoln, attorney-general, having been summoned, and now called, objected to answering. * * * On the one hand he respected the jurisdiction of this court, and on the other he felt himself bound to maintain the rights of the executive. He was acting as secretary of state at the time when this transaction happened.

He was of opinion, and his opinion was supported by that of others whom he highly respected, that he was not bound, and ought not to answer, as to any facts which came officially to his knowledge while acting as secretary of state. He did not think himself bound to disclose his official transactions while acting as secretary of state; * * * The court said, that if Mr. Lincoln wished time to consider what answers he should make, they would give him time; but they had no doubt he ought to answer. There was nothing confidential required to be disclosed. If there had been he was not obliged to answer it; and if he thought that any thing was communicated to him in confidence he was not bound to disclose it; * * *" 1 Cr. 137, 143-145 (1803).

[328] The following letter, dated April 30, 1941, from Attorney General Jackson to Hon. Carl Vinson, Chairman of the House Committee on Naval Affairs is of interest in this connection: "My Dear Mr. Vinson: I have your letter of April 23, requesting that your committee be furnished with all Federal Bureau of Investigation reports since June 1939, together with all future reports, memoranda, and correspondence of the Federal Bureau of Investigation, or the Department of Justice, in connection with 'investigations made by the Department of Justice arising out of strikes, subversive activities in connection with labor disputes, or labor disturbances of any kind in industrial establishments which have naval contracts, either as prime contractors or subcontractors.' Your request to be furnished reports of the Federal Bureau of Investigation is one of the many made by congressional committees. I have on my desk at this time two other such requests for access to Federal Bureau of Investigation files. The number of these requests would alone make compliance impracticable, particularly where the requests are of so comprehensive a character as those contained in your letter. In view of the increasing frequency of these requests, I desire to restate our policy at some length, together with the reasons which require it. It is the position of this Department, restated now with the approval of and at the direction of the President, that all investigative reports are confidential doc.u.ments of the executive department of the Government, to aid in the duty laid upon the President by the Const.i.tution to 'take care that the laws be faithfully executed,'

and that congressional or public access to them would not be in the public interest.

"Disclosure of the reports could not do otherwise than seriously prejudice law enforcement. Counsel for a defendant or prospective defendant, could have no greater help than to know how much or how little information the Government has, and what witnesses or sources of information it can rely upon. This is exactly what these reports are intended to contain. * * *

"In concluding that the public interest does not permit general access to Federal Bureau of Investigation reports for information by the many congressional committees who from time to time ask it, I am following the conclusions reached by a long line of distinguished predecessors in this office who have uniformly taken the same view. Example of this are to be found in the following letters, among others:

"Letter of Attorney General Knox to the Speaker of the House, dated April 27, 1904, declining to comply with a resolution of the House requesting the Attorney General to furnish the House with all papers and doc.u.ments and other information concerning the investigation of the Northern Securities case.

"Letter of Attorney General Bonaparte to the Speaker of the House, dated April 13, 1908, declining to comply with a resolution of the House requesting the Attorney General to furnish to the House information concerning the investigation of certain corporations engaged in the manufacture of wood pulp or print paper.

"Letter of Attorney General Wickersham to the Speaker of the House, dated March 18, 1912, declining to comply with a resolution of the House directing the Attorney General to furnish to the House information concerning an investigation of the smelter trust.

"Letter of Attorney General McReynolds to the Secretary to the President, dated August 28, 1914, stating that it would be incompatible with the public interest to send to the Senate in response to its resolution, reports made to the Attorney General by his a.s.sociates regarding violations of law by the Standard Oil Co.

"Letter of Attorney General Gregory to the President of the Senate, dated February 23, 1915, declining to comply with a resolution of the Senate requesting the Attorney General to report to the Senate his findings and conclusions in the investigation of the smelting industry.

"Letter of Attorney General Sargent to the chairman of the House Judiciary Committee, dated June 8, 1926, declining to comply with his request to turn over to the committee all papers in the files of the Department relating to the merger of certain oil companies. * * *