From the Constitution it appears that the power of appointment is vested in the President and Senate conjointly, and that nothing is said of the power of removal, except in case of impeachment, when it is made by the Senate. Therefore the power of removal is not express, but implied only, and must exist, if at all, as a necessary consequence of the power to appoint. But in whom? According to a familiar rule, the power which makes can unmake. Unless this rule be rejected, the power of removal must exist in the President and Senate conjointly; nor is there anything unreasonable in this conclusion. Removal can always be effected during the session of the Senate by the nomination and confirmation of a successor, while provision can be made for the recess by an Act of Congress. This conclusion would be irresistible, were the Senate always in session; but since it is not, and since cases may arise during the recess requiring the immediate exercise of this power, it has been argued that at least during the recess it must be in the President alone. From this position there has been a jump to the next, and it has been insisted, that, since, for the sake of public convenience, the power of removal exists in the President, he is at liberty to exercise it either during the recess or the session itself. Here is an obvious extension of the conclusion, which the premises do not warrant. The reason failing, the conclusion must fail. Cessante ratione legis, cessat ipsa lex. Especially must this be the case under the National Constitution. A power founded on implied necessity must fail when the necessity does not exist. The implication cannot be carried beyond the reason. Therefore the power of removal during the recess, doubtful at best, unless sanctioned by Act of Congress, cannot be extended to justify the exercise of that power while the Senate is in session, ready to act conjointly with the President.
Against this natural conclusion, we have the assumption that a contrary construction of the National Constitution was established after debate in 1789. I avoid all details with regard to this debate, cited and considered so often. I content myself by asking if at best it was anything but a Congressional construction of the National Constitution, and, as such, subject to be set aside by another voice from the same quarter. It was, moreover, a Congressional construction adopted during the administration of Washington, whose personal character must have influenced opinion largely; and it prevailed in the House of Representatives only after earnest debate by a majority of twelve, and in the Senate only by the casting vote of the Vice-President, John Adams, who, from position as well as principle, was not inclined to shear the President of any prerogative. Once adopted, and no strong necessity for a change occurring, it was allowed to go unaltered, but not unquestioned. Jurists like Kent and Story, statesmen like Webster, Clay, Calhoun, and Benton, recorded themselves adversely, and it was twice reversed by vote of the Senate. This was in 1835 and again in 1836, when a bill passed the Senate, introduced by Mr. Calhoun and sustained by the ablest statesmen of the time, practically denying the power of the President.[204] The Tenure-of-Office Act was heralded in 1863 by a statute making the Comptroller of the Currency removable “by and with the advice and consent of the Senate,”[205]—thus, in this individual case, asserting for the Senate a check on the President; and then in 1866, by a more important measure, being the provision in the Army Appropriation Act,[206] that “no officer in the military or naval service shall in time of peace be dismissed from service, except upon and in pursuance of the sentence of a court-martial,”—thus putting another check on the President. Finally, this Congressional construction, born of a casting vote, and questioned ever since, has been overruled by another Congressional construction, twice adopted in both Houses, first by large majorities on the original passage of the Tenure-of-Office Act, and then by a vote of two thirds on the final passage of the same Act over the veto of the President,—and then again adopted by more than two thirds of the Senate, when the latter condemned the removal of Mr. Stanton: and all this in the light of experience, after ample debate, and with all the consequences before them. Such a Congressional construction must have a controlling influence, and the fact that it reversed the practice of eighty years and overcame the disposition to stand on the ancient ways would seem to increase rather than diminish its weight.
Now mark the consequences. Originally, in 1789, there was a Congressional construction which in effect made the National Constitution read,—
“The President shall have the power of removal.”
For the next eighty years all removals were made under this construction. The Tenure-of-Office Act was a new Congressional construction, overruling the first, and entitled to equal, if not superior weight. By virtue of this Congressional construction the National Constitution now reads,—
“The President shall not have the power of removal.”
It follows, then, that in removing Mr. Stanton the President violated the National Constitution as now construed.
The dilemma is this: If the President can remove Mr. Stanton during the session of the Senate, without any power by statute, it is only by virtue of a prerogative vested in him by the National Constitution, which must necessarily override the Tenure-of-Office Act, as an unconstitutional effort to abridge it. If, on the other hand, this Act is constitutional, the prerogative of removal is not in the President, and he violated the National Constitution when he assumed to exercise it.
The Tenure-of-Office Act cannot be treated otherwise than as constitutional,—certainly not in the Senate, where some among the apologists of the President voted for it. Therefore the prerogative of removal is not in the President. The long practice which grew up under a mere reading of the National Constitution has been declared erroneous. To this extent the National Constitution has been amended, and it is as absurd to plead the practice under the first reading, in order to justify an offence under the second, as to plead the existence of Slavery before the Constitutional Amendment, in order to justify this monstrosity now.