Myers v. United States, No. 2

CourtUnited States Supreme Court
Writing for the CourtTAFT
Citation71 L.Ed. 160,47 S.Ct. 21,272 U.S. 52
PartiesMYERS v. UNITED STATES. Re
Decision Date25 October 1926
Docket NumberNo. 2

272 U.S. 52
47 S.Ct. 21
71 L.Ed. 160
MYERS

v.

UNITED STATES.

No. 2.
Reargued April 13, 14, 1925.
Decided Oct. 25, 1926.

[Syllabus from pages 52-60 intentionally omitted]

Page 60

Messrs. Will R. King, of Portland, Or., and L. H. Cake, of Washington, D. C. (Martin L. Pipes, of Portland, Or., of counsel), for appellant.

Mr. George Wharton Pepper, of Philadelphia, Pa., amicus curiae.

Mr. James M. Beck, Sol. Gen., of New York City, and Rebert P. Reeder, Sp. Asst. Atty. Gen., for the United States.

[Argument of Counsel and Amicus Curiae from pages 60-106 intentionally omitted]

Page 106

Mr. Chief Justice TAFT delivered the opinion of the Court.

This case presents the question whether under the Constitution the President has the exclusive power of removing executive officers of the United States whom he has appointed by and with the advice and consent of the Senate.

Myers, appellant's intestate, was on July 21, 1917, appointed by the President, by and with the advice and consent of the Senate, to be a postmaster of the first class at Portland, Or., for a term of four years. On January 20, 1920, Myers' resignation was demanded. He refused the demand. On February 2, 1920, he was removed from office by order of the Postmaster General, acting by direction of the President. February 10th, Myers sent a petition to the President and another to the Senate committee on post offices, asking to be heard, if any charges were filed. He protested to the department against his removal, and continued to do so until the end of his term. He pursued no other occupation and drew compensation for no other service during the interval. On April 21, 1921, he brought this suit in the Court of Claims for his salary from the date of his removal, which, as claimed by supplemental petition filed after July 21, 1921, the end of his term, amounted to $8,838.71. In August, 1920, the President made a recess appointment of one Jones, who took office September 19, 1920.

Page 107

The Court of Claims gave judgment against Myers and this is an appeal from that judgment. The court held that he had lost his right of action because of his delay in suing, citing Arant v. Lane, 249 U. S. 367, 39 S. Ct. 293, 63 L. Ed. 650; Nicholas v. United States, 257 U. S. 71, 42 S. Ct. 7, 66 L. Ed. 133, and Norris v. United States, 257 U. S. 77, 42 S. Ct. 9, 66 L. Ed. 136. These cases show that when a United States officer is dismissed, whether in disregard of the law or from mistake as to the facts of his case, he must promptly take effective action to assert his rights. But we do not find that Myers failed in this regard. He was constant in his efforts at reinstatement. A hearing before the Senate committee could not be had till the notice of his removal was sent to the Senate or his successor was nominated. From the time of his removal until the end of his term, there were three sessions of the Senate without such notice or nomination. He put off bringing his suit until the expiration of the Sixty-Sixth Congress, March 4, 1921. After that, and three months before his term expired, he filed his petition. Under these circumstances, we think his suit was not too late. Indeed the Solicitor General, while not formally confessing error in this respect, conceded at the bar that no laches had been shown.

By the sixth section of the Act of Congress of July 12, 1876, 19 Stat. 80, 81, c. 179 (Comp. St. § 7190), under which Myers was appointed with the advice and consent of the Senate as a first-class postmaster, it is provided that:

'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.'

The Senate did not consent to the President's removal of Myers during his term. If this statute in its requirement that his term should be four years unless sooner removed by the President by and with the consent of the

Page 108

Senate is valid, the appellant, Myers' administratrix, is entitled to recover his unpaid salary for his full term and the judgment of the Court of Claims must be reversed. The government maintains that the requirement is invalid, for the reason that under article 2 of the Constitution the President's power of removal of executive officers appointed by him with the advice and consent of the Senate is full and complete without consent of the Senate. If this view is sound, the removal of Myers by the President without the Senate's consent was legal, and the judgment of the Court of Claims against the appellant was correct, and must be affirmed, though for a different reason from the given by that court. We are therefore confronted by the constitutional question and cannot avoid it.

The relevant parts of article 2 of the Constitution are as follows:

'Section 1. The executive Power shall be vested in a President of the United States of America. * * *

'Section 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Officers, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

'He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be estab-

Page 109

lished by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

'The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

'Section 3. He shall from time to time give to the Congress information of the State of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

'Section 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.'

Section 1 of article 3 provides:

'The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior Courts, shall hold their offices during good behavior. * * *'

The question where the power of removal of executive officers appointed by the President by and with the advice and consent of the Senate was vested, was presented early in the first session of the First Congress. There is no express provision respecting removals in the Constitution, except as section 4 of article 2, above quoted, provides for removal from office by impeachment. The subject

Page 110

was not discussed in the Constitutional Convention. Under the Articles of Confederation, Congress was given the power of appointing certain executive officers of the Confederation, and during the Revolution and while the articles were given effect, Congress exercised the power of removal. May, 1776, 4 Journals of the Continental Congress, Library of Congress Ed., 361; August 1, 1777, 8 Journals, 596; January 7, 1779, 13 Journals, 32-33; June, 1779, 14 Journals, 542, 712, 714; November 23, 1780, 18 Journals, 1085; December 1, 1780, 18 Journals, 1115.

Consideration of the executive power was initiated in the Constitutional Convention by the seventh resolution in the Virginia Plan introduced by Edmund Randolph. 1 Farrand. Records of the Federal Convention, 21. It gave to the executive 'all the executive powers of the Congress under the Confederation,' which would seem therefore to have intended to include the power of removal which had been exercised by that body as incident to the power of appointment. As modified by the committee of the whole this resolution declared for a national executive of one person to be elected by the Legislature, with power to carry into execution the national laws and to appoint to offices in cases not otherwise provided for. It was referred to the committee on detail (1 Farrand, 230), which recommended that the executive power should be vested in a single person to be styled the President of the United States, that he should take care that the laws of the United States be duly and faithfully executed, and that he should commission all the officers of the United States and appoint officers in all cases not otherwise provided by the Constitution (2 Farrand, 185). The committee further recommended that the Senate be given power to make treaties, and to appoint ambassadors and judges of the Supreme Court.

After the great compromises of the convention-the one giving the states equality of representation in the

Page 111

Senate, and the other placing the election of the President, not in Congress, as once voted, but in an electoral college, in which the influence...

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622 practice notes
  • U.S. v. City of Philadelphia, No. 80-1348
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • February 19, 1981
    ...and were it to announce such an intent, an attempt to enforce it might itself implicate separation of powers. Cf. Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926). While the Executive may not decline to follow a congressional mandate within its proper legislative compet......
  • Al Bahlul v. United States, No. 11–1324
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    • U.S. Court of Appeals — District of Columbia Circuit
    • October 20, 2016
    ...end and another's begin, it has required robust evidence of a historical practice. For instance, 840 F.3d 823in Myers v. United States , 272 U.S. 52, 175, 47 S.Ct. 21, 71 L.Ed. 160 (1926), in examining the President's removal power, the Court found more than seven decades in which President......
  • Ashwander v. Tennessee Valley Authority, Nos. 403
    • United States
    • United States Supreme Court
    • February 17, 1936
    ...Humphrey's Executor v. United States, 295 U.S. 602, page 626 et seq., 55 S.Ct. 869, 79 L.Ed. 1611, which limited Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160, disapproving important statements in the opinion. For lists of decisions of this Court later overruled, see Burnet......
  • Ammex, Inc. v. Wenk, No. 18-1677
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    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 21, 2019
    ...§ 1, and provides that the President "shall take Care that the Laws be faithfully executed," id. § 3. See also Myers v. United States , 272 U.S. 52, 164, 47 S.Ct. 21, 71 L.Ed. 160 (1926). As the Supreme Court explained, "the Presidency concentrates executive authority ‘in a single head in w......
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604 cases
  • U.S. v. City of Philadelphia, No. 80-1348
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • February 19, 1981
    ...and were it to announce such an intent, an attempt to enforce it might itself implicate separation of powers. Cf. Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926). While the Executive may not decline to follow a congressional mandate within its proper legislative compet......
  • Al Bahlul v. United States, No. 11–1324
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • October 20, 2016
    ...end and another's begin, it has required robust evidence of a historical practice. For instance, 840 F.3d 823in Myers v. United States , 272 U.S. 52, 175, 47 S.Ct. 21, 71 L.Ed. 160 (1926), in examining the President's removal power, the Court found more than seven decades in which President......
  • Ashwander v. Tennessee Valley Authority, Nos. 403
    • United States
    • United States Supreme Court
    • February 17, 1936
    ...Humphrey's Executor v. United States, 295 U.S. 602, page 626 et seq., 55 S.Ct. 869, 79 L.Ed. 1611, which limited Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160, disapproving important statements in the opinion. For lists of decisions of this Court later overruled, see Burnet......
  • Ammex, Inc. v. Wenk, No. 18-1677
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 21, 2019
    ...§ 1, and provides that the President "shall take Care that the Laws be faithfully executed," id. § 3. See also Myers v. United States , 272 U.S. 52, 164, 47 S.Ct. 21, 71 L.Ed. 160 (1926). As the Supreme Court explained, "the Presidency concentrates executive authority ‘in a single head in w......
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    • Mondaq United States
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    ...Dec. 1, 2021. 13. Jarkesy, 2022 WL 1563613, at *7. 14. Id. at *10. 15. Id. at *24-25. 16. See id. at *11 (citing Myers v. United States, 272 U.S. 52, 117 17. Id. at *12 (citing Free Enterprise Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 477 (2010)). 18. Id. at *27-28. 19. See17 C.......
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    ...of the Selective Service Act, 42 Fed. Reg. 4391 (Jan. 24, 1977). 75. Goldwater v. Carter, 444 U.S. 996 (1979). 76. Myers v. United States, 272 U.S. 52 (1926). judgment. President Abraham Lincoln recognized in his irst inaugural address that a Supreme Court decision over-ruling the principle......
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    • United States
    • The Georgetown Journal of Law & Public Policy Nbr. 18-1, January 2020
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    ...(1986) (internal quotation marks omitted). And it soon became the ‘settled and well understood construction of the Constitution.’”). 179. 272 U.S. 52 (1926). 180. U.S. CONST. art. II, § 2, cl. 2 (“[The President] . . . shall have Power, by and with the Advice and Consent of the Senate . . .......
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    ...Independent Agencies (and Executive Agencies), 98 Cornell L. Rev. 769, 786 (2013). (225.) 42 U.S.C. [section] 902(a)(3). (226.) 272 U.S. 52 (1926). A paean to executive power written by Chief Justice (and former President) Taft, Myers held that the Congress could not prevent the president f......
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