402 WRIGHT— POWER TO ESTABLISH 



230. Powers of Removing and of Directing Officers and Agents. 



In the United States Government, though not in the states, the re- 

 moval power seems to belong inherently to the Chief Executive, This 

 was decided in the debate of the first Congress on a bill for organ- 

 izing the Department of State and has been consistently admitted 

 since, with exception of the period of the tenure of office acts, 1867- 

 1887. These acts, originating in political hostility to President 

 Johnson, were virtually held to have been unconstitutional by the 

 Supreme Court after their repeal.^* 



Through the power of removal the President has the power to 

 direct administrative officials with no practical restraint, as was illus- 

 trated by President Jackson's action in the bank controversy. By 

 successive removals of Secretaries of the Treasury, he was able to 

 direct the removal of government deposits from the Second United 

 States Bank, although by law discretion in this matter belonged to 

 the Secretary .^^ 



" I think," wrote Attorney General Gushing in 1855, " the general rule to 

 be . . . that the head of department is subject to the direction of the 

 President. (This was said in relation to duties imposed by statute upon a 

 head of a department.) I hold that no head of department can lawfully 

 perform an official act against the will of the President and that will is, by 

 the Constitution, to govern the performance of all such acts." 26 



As Commander-in-Chief, the President has complete power of di- 

 recting the military and naval services of the national government. ^'^ 



2* Parsons v. U. S., 167 U. S. 324. The power to remove has usually 

 been considered an implication of the power to appoint. {Ex parte Hennen, 

 13 Pet. 230, 1839; U. S. V. Perkins, 116 U. S. 143; Shurtlefif v. U. S., 189 

 U. S. 311; President Wilson's veto of National Budget Bill, June 4, 1920.) 

 This derivation of the power, however, would seem to leave Congress dis- 

 cretion to determine the authority to remove " inferior officers " for whose 

 appointment they may provide, a discretion it has never successfully exercised 

 as to executive and administrative officers and which is inconsistent with the 

 recognized practice whereby the President alone removes, even when the 

 appointing power is the President acting with advice and consent of the 

 Senate. See Powell, National Municipal Review, 9 : 538-545, and supra, sees. 

 52, 53- 



25 Goodnow, op. cit., pp. 77-82. 



26 Gushing, Att. Gen., 7 Op. 453, 470. 



2'' £.r parte Milligan, 4 Wall. 2, supra, sec.' 221. 



