President vs. Senate

The U. S. Supreme Court listened to a dispute on the Constitution between Solicitor General James M. Beck and Senator George Wharton Pepper. Mr. Beck represented the person and office of the President. Senator Pepper represented the Senate.

The Particulars. One Frank S. Myers was appointed postmaster at Portland, Ore., by President Wilson in 1917, was removed by the President in January, 1920. Mr. Myers sued for salary for the balance of his four-year term.

The Dispute. Postmasters are appointed by the President "by and with the advice and consent of the Senate." Mr. Pepper contended that they cannot be removed except with the same advice and consent. "The well-deserved public confidence in the President is equaled by the unpopularity of Congress," but, said the Senator, "it must never be forgotten that English-speaking people have found it wise to place their trust in the Legislature." Congress, said he, has full power over all offices which it has created--i.e., over all Federal offices except those created by the Constitution itself.

"While the exercise of the power of removal is an executive act, yet the duty to prescribe the conditions of removal is not an executive power at all, but is legislative in its nature, and is incidental to the power to create the office, and must, therefore, be exercised only in accordance with the terms of the creating act."

In closing, the brief declared that "the age-old tradition of free government will best be conserved if this question is resolved against the Executive and in favor of the Legislature."

Solicitor Beck simply contended that the power to remove is incident to the power to appoint, which power is executive and not legislative in nature.

The heart of his argument is a reduction ad absurdum: The President's job is to execute the laws. He does this through the agency of some 800,000 Federal employes. If he cannot discharge all, he cannot discharge any of them without Senatorial consent. Then 1) when the Senate is not in session no one can be ousted; 2) the Senate could confer life tenure. Furthermore, the party in control of Congress during the short session after a Presidential election could, with the support of the outgoing President, or with a two-thirds majority, enact a law which would prohibit the new President from forming a new Cabinet of his own. In short, the Senate, if Senator Pepper's contention is sound, could so usurp the executive function as to make a President powerless. All of which is absurd.