But even if we suppose President Tyler to have meant what he said, his argument is forcible; for under no circumstance could the House have a share in the power of appointment to office. The power was vested solely with the President and Senate, and so long as legal proceedings of impeachment were not pending, any body of citizens would have as much right as the House of Representatives to inquire into the reasons for an appointment. But if we suppose President Tyler referred to nominations instead of to appointments, the case becomes stronger yet; for even the Senate has no right to call upon the executive for his reasons in nominating a certain man. It can refuse to confirm the nominee, but that is the limit of its power.

If the call for information about nominations would have had no force, the request of the House was even more unjustifiable, since it called for the names of those who had applied to the President for office, whether they were nominated by him or not. The fact that the resolution verged on the ridiculous was appreciated by some of the representatives; for, in the debate pending its adoption, various amendments were offered, each one of which enlarged the scope of the proposal. The last of these amendments was offered by Mr. Snyder, and was to the effect that the President be requested to state whether or not he slept in a four-post bed. This amendment was gravely voted down, but it certainly had as broad a basis of constitutional right as the original resolution.

§ 27. Requiring papers relative to removals from office. - Closely akin to the question just considered is the controversy which arose between President Cleveland and the Senate in regard to removals from office.

In July, 1885, George M. Dustin, United States District Attorney for the Seventh District of Alabama, was removed by the President, and John D. Burnett designated to perform the duties of the office. When the question of Burnett's confirmation came up in January, 1886, the Senate called on the Attorney General for all the papers filed in the Department of Justice relative to the removal of Dustin.2 The Attorney General at the direction of the President refused this request, and pointed out that the

1 Niles, Register, LXII, 61.

2 Congressional Record, 49 Cong., I sess., 1585.

Senate already had all the papers relating to the nomination of Burnett.1

The Senate criticised the President's position severely.2 It was maintained that the papers were essential to the decision of the question as to whether a nomination was necessary; that letters to public officers in their public capacity are official papers. In short, it was held that the Senate had the right to call for and should receive any papers on file in the archives of the Departments, and that therefore the President's position was untenable.

The President, on the other hand, declared that the papers in question, although on file in the Department of Justice, were private, and therefore not subject to the call of the Senate. The President then took up the real question at issue, and denied in a most emphatic manner the right of the Senate to "review or reverse the act of the executive in the suspension during the recess of the Senate of federal officials." 8

The decision of the dispute must turn on the question last touched upon. Can the Senate "review or reverse" the suspension of federal officials during the recess of the Senate? It would seem that it cannot. For when the Tenure of Office Act was amended in 1869, the suspension of officials during the recess was left wholly to the discretion of the President, and the provision requiring him to report to the Senate the evidence and reason for his action was abandoned. Under these circumstances the Senate had no right to demand the papers relative to the suspension of Dustin, and the President in refusing the request was only defending his legal and constitutional rights.

4

§ 28. The Tenure of Office Act. In President Johnson's administration arose a much more serious question with reference to the power of appointment. President Johnson had always advocated rotation in office in its most flagrant form,5 and when he came into power he used the patronage of the government to destroy the political organization which had placed him in power, but which was not willing to accept his policy. In the summer of 1866 he openly defied Congress, and declared that he would "kick out" the office-holders hostile to him as fast as he could.6 Congress and the country felt that something must be done, and, after re2 Ibid. Ibid., 1902-1903.

1 Congressional Record, 49 Cong., I sess., 1585.

4 16 Stats. at Large, 6.

5 Miss Salmon, Appointing Power of the President, 89.

6 Ibid., 89, note.

jecting the Civil Service Bill, offered by Mr. Jenckes of Rhode Island, passed the Tenure of Office Act. This bill abandoned the past policy of the government, and provided that in all cases where the confirmation of the Senate was required, no removal could be made by the President without the approval of the Senate.

President Johnson's veto was based on constitutional grounds. The President showed that the First Congress had construed the Constitution as conferring the power of removal on the President alone; that Madison considered this to be a correct construction of the Constitution; that Justice Story and Chancellor Kent considered the ruling of the First Congress binding; and that Mr. Webster, although opposed to removal by the President alone, admitted "that it was settled by construction, settled by precedent, settled by the practice of the government, and settled by statute." The President's position was perfectly sound, from a constitutional point of view, and his argument was of great weight. The fact was that Congress, in attacking President Johnson's notoriously flagrant abuse of power, had attacked it from the wrong direction. If Mr. Jenckes' measure had been adopted, the President would have had no constitutional arguments to oppose to it.3

Congress was in no mood to be opposed, however, and in spite of the President's logic, passed the bill over his veto.1

§ 29. The Fitz-John Porter Bill. The last of the vetoes for the protection of the power of appointment, like the first one in the class, frustrated action which was much like an actual appointment to office on the part of Congress. The bill was entitled "An act for the relief of Fitz-John Porter," and it was vetoed by President Arthur July 2, 1884.5 The bill authorized the President to appoint Porter to his old position as Colonel in the Army.

One of the reasons for the veto was that the measure was an infringement of the executive power of appointment. It is unconstitutional for Congress to authorize the President to make any

1 Senate Journal, 39 Cong., 2 sess., 423; 14 Stats. at Large, 430. 2 Annals of Congress, I Cong., I sess., 368–383.

3 Mr. Jenckes' Bill would have prevented the appointment of unfit men, but would have left the President's power of removal untouched. - Miss Salmon, Appointing Power of the President, 90.

* Appendix A, No. 62. The act was partially repealed in 1869, and wholly repealed in 1887. It has generally been considered both inexpedient and unconstitutional.

5 Appendix A, No. 132. Porter had been cashiered by court-martial in 1863 for alleged insubordination.

appointment. The Constitution gives the President power to make appointments to certain offices which it names, as well as to all others not otherwise provided for by the Constitution which shall be established by law. The only limit on this power is the provision that "Congress may by law vest the appointment of such inferior officers as they think proper in the President alone, in the Courts of the law, or in the heads of the departments."1 Congress is omitted from this carefully enumerated list of possible possessors of appointing power, and, in consequence, cannot legally claim such power. To be sure, in the bill under discussion Congress merely authorized the President to appoint, and did not assume to make the appointment or even to command the President to make it. The bill was, however, an attempt to ensure the appointment of Porter to his old position, and this attempt was in spirit, if not technically, a violation of the Constitution.2

§ 30. Protest for the protection of the President's war power. The President has been obliged to defend his power in foreign affairs and his power of appointment by the use of the veto. Still another executive power has been attacked by Congress and defended by the President. This is the War Power. In 1867, Congress passed an act making appropriations for the army, to which was tacked a rider practically depriving the President of his power as Commander-in-chief of the Army. The President signed the bill on account of the urgent need for the appropriation, but he sent to Congress a vigorous protest against the rider.5

It

Here, as in the veto of the Tenure of Office bill, Johnson had the Constitution on his side. That instrument says clearly that "the President shall be Commander-in-chief of the Army and Navy of the United States."6 Congress has no voice in the matter. can appoint no one but the President Commander-in-chief, and can withdraw from him not the slightest part of the power pertaining to the office. The only remedy for a misuse of the power is an impeachment.

1 Constitution of United States, Art. II, Sec. 2, § 2.

2 The bill also relieved Porter of his disabilities. This side of the measure will be referred to in § 68.

3 14 United States Stats. at Large, 487.

4 The act provided that all orders should be given through the commanding general,

then General Grant.

5

Appendix B, No. 6.

6 Art. II, Sec. 2, § I.

7 Von Holst, Constitutional Law, 192.

§ 31. Protest and veto for the protection of the President's personal rights under the Constitution. Congress, besides infringing the powers of the executive in foreign affairs, over appointments and over the Army and Navy, has, in two instances, attempted to deprive the President of what might be called his personal rights under the Constitution.

1

§ 32. Covode Investigation. The first of these attempts occurred in President Buchanan's administration and was met by a protest. The affair is known as the Covode investigation, and was based on a resolution appointing a committee to see if the President had, "by money patronage or improper means, sought to influence the action of Congress, or any committee thereof, for or against the passage of any law appertaining to the rights of any State or Territory." The friends of the measure upheld it on the ground that it was but an exercise of the power which the House of Representatives possessed in the matter of impeachment. The President pointed out in his protest 2 that, with the exception of the power of impeachment, the Constitution vests the House of Representatives with no jurisdiction over the President, and that in such proceedings all precedents demanded the presentation of particular charges, and an open and impartial investigation of those charges. In the Covode Investigation the accusations were of the vaguest possible character, and the investigation was conducted by an ex parte committee in secret session. In view of these facts, the protest seems justified; and this conclusion is strengthened when we consider that the resolution calling for the investigation was rushed through the House under cover of the previous question, that no attempts to point out the lack of specific charges were allowed to succeed, that the accuser was made one of the judges, and that the evidence was taken in an unfair way. It was, in short, little more than a scheme to inculpate the administration and render it odious before the country.3

$33. The President's salary. One other attempt to encroach upon what I have called the personal rights of the executive is to be noticed. On April 18, 1876, President Grant vetoed a bill to reduce the President's salary from $50,000 to its old figure,

274.

1 Congressional Globe, 39 Cong., I sess., 1437.

2

Appendix B, No. 4; Senate Miscellaneous Documents, 49 Cong., 2 sess., No. 53,

8 Curtis, Life of Buchanan, 248.