You are currently viewing Myers v. United States, 272 U.S. 52; 47 S. Ct. 21; 71 L. Ed. 160 (1926)

Myers v. United States, 272 U.S. 52; 47 S. Ct. 21; 71 L. Ed. 160 (1926)

Myers v. United States, 272 U.S. 52; 47 S. Ct. 21; 71 L. Ed. 160 (1926)

Facts—Congress passed the Tenure of Office Act, which sought to prevent the president’s removal of any official for whose appointment the concur- rence of the Senate was required, without in turn obtaining senatorial ap- proval for his dismissal. This formula was subsequently reenacted in a statute of 1876 pertaining to postmasters of the first three classes, concurrence of the Senate being stipulated as necessary for removal as well as appointment. In 1920, President Wilson removed Myers, the postmaster of Portland, Or- egon, without obtaining or even requesting the consent of the Senate. Myers claimed that, under the terms of the 1876 statute, his removal was unlawful and sued for salary due him.

Question—Is the consent of the Senate required for the removal of an individ- ual whom the president appointed with the advice and consent of that body?


ReasonsC.J. Taft (6–3). Section 6 of the act of July 12, 1876, under which Myers was appointed provided that “Postmasters of the first, second and third classes shall be appointed and may be removed by the president by and with the consent of the Senate, and shall hold their offices for four years unless sooner removed or suspended according to law.” Taft referred to Madison’s opinion given in the House of Representatives during the First Congress on Tuesday, May 18, 1789. The vesting of the executive power in the president was essentially a grant of the power to execute the laws. But the president alone and unaided cannot execute the laws. He must execute them by the as- sistance of subordinates. The Court has since repeatedly affirmed this view. The further implication must be, in the absence of any express limitation respecting removals, that as the president’s selection of administrative of- ficers is essential to the execution of the laws by him, so is his power of removing those for whom he cannot continue to be responsible.

The power to prevent the removal of an officer who has served under the president is different from the authority to consent to or reject his appoint- ment. When a nomination is made, it may be presumed that the Senate is, or may become, as well advised as to the fitness of the nominee as the president, but in the nature of things defects in ability or intelligence or loyalty in the administration of the laws of one who has served under the president are facts as to which the president or his trusted subordinates must be better informed than the Senate, and the power to remove him may therefore be regarded as confined, for very sound practical reasons, to the governmental authority that has administrative control. The power of removal is incident to the power of appointment, not to the power of advising and consenting to appointment, and when the grant of the executive power is enforced, by the express mandate to take care that the laws be faithfully executed, it emphasizes the necessity for including within the executive power as conferred the exclusive power of removal. All three branches of the government held such a view for more than seventy-four years (1789–1863). The Court concluded that, for the reasons given, it must therefore hold that the provision of the law of 1876 by which the unrestricted power of removal of first-class postmasters was denied to the president was in violation of the Constitution and invalid.

In dissents, J. Holmes, J. Brandeis, and J. McReynolds stressed that Con- gress had created the job in question and that Congress had the power to vest such appointments and removals in individuals other than the president, thus disputing the idea that removal was an inherent presidential power.

NoteRathbun, Humphrey’s Executor v. United States, 295 U.S. 602 (1935), sharply reduced the extent of Myers by limiting this power in the cases of appointments to quasi-legislative and quasi-judicial bodies. Similarly, in Wiener v. United States, 357 U.S. 349 (1958), the Court limited Eisenhower’s removal power in the case of a member of a war claims commission.

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