The Power of Removal from Federal Offices. the Government, they would have made that intention manifest by the use of plain and unequivocal terms, instead of allowing it to depend upon mere inference or implication. The conclusion follows, that the power of removal is not one of the implied powers of the Executive. The second inquiry which presents itself is the following : Does the power to remove from office reside in the President and the Senate jointly? It was contended by the minority in the Congress of 1789, that the power to remove is included in, or is but an incident to, the power to appoint, in other words, that in the absence of any express provision to the contrary, the same power which appoints, must also remove. The fact that the Con stitution is silent as to any executive power of removal creates a strong presumption that it was not regarded as a separate and distinct function. This doctrine has been advocated by many of our ablest statesmen and jurists, and has also received the ex press sanction of the Supreme Court. In the case of ex parte Hennen, 13 Peters, 230, it was held that a clerk of a district court holds his office at the will of the appointing power; and Thompson, J., in delivering the opinion of the court, said: "In the absence of all constitutional provision or statutory regulation, it would seem to be a sound and necessary rule to consider the power of re moval as incident to the power of appoint ment." If this be true, none except inferior officers can be legally removed by the Presi dent without the advice and consent of the Senate. The decision in this case was cited and approved by Mr. Justice Harlan, who delivered the unanimous opinion of the Supreme Court in the case of Blake vs. United States, reported in volume 103 of the U. S. Reports, p. 227. This construction of the Constitution is also in accordance with the opinion of Alexander Hamilton, who in the 77th number of " The Federal ist " discusses this point as follows :
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It has been mentioned, as one of the advantages to be expected from the cooperation of the Senate in the business of appointments, that it would con tribute to the stability of the Administration. The consent of that body would be necessary to displace as well as to appoint. A change of the Chief Magis trate, therefore, would not occasion so violent or so general a revolution in the officers of the Govern ment as might be expected if he were the sole dis poser of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that the discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration will be most disposed to prize a provision which con nects the official existence of public men with the ap probation or disapprobation of that body, which, from the greater permanency of its own composition, will, in all probability, be less subject to inconstancy than any other member of the Government.
(The italics in the above quotation are the writers.) If further authority in support of this con tention be necessary, the writer will cite the opinion of Daniel Webster, who has been called "the great expounder of the Con stitution," and who, in the course of a speech delivered in the Senate of the United States on Feb. 16, 1835, spoke as follows: Nothing is said in the Constitution about the power of removal, because it is not a separate and distinct power. It is part of the power of appoint ment, naturally going with it or necessarily resulting from it. . . . If the power of removal, when not otherwise regulated by Constitution or law, be part and parcel of the power of appointment, or a neces sary incident to it, then whoever holds the power of appointment holds also the power of removal. But it is the President and the Senate, and not the Presi dent alone, who hold the power of appointment; and therefore, according to the true construction of the Constitution, it should be the President and Senate, and not the President alone, who hold the power of removal. (Webster's Works, vol. iv, pp. 189-190.)
One other point only will be noticed, and that is this: It is manifest that if the power to remove, without the advice and consent of the Senate, exists, it may be exercised in such a manner as to deprive that body of
