[BroJoeK]

woodpusher: "For what purpose do you invoke the Tenure of Office Act, an Act notoriously known to be unconstitutional?
How could President Andrew Johnson violate a "law" which was unconstitutional and null and void ab initio?"

First of all, "null and void ab initio" was not used in any report I've seen, instead parts of the Tenure of Office Act were said (in 1926 in dicta) to be "invalid".

So, you claimed that Lincoln broke the law and Johnson didn't when the truth is just the opposite: Johnson broke an actual law but Lincoln didn't.
Yes, SCOTUS declared, in dicta, 59 years later, parts of the law Johnson broke to be "invalid", but that was never Trumbull's call to make.

woodpusher: "Trumbull was right, beyond any reasonable doubt and to a moral certainty."

Nonsense, Trumbull assumed for himself the authority of the Supreme Court to overturn precedent and declare a law "unconstitutional".

woodpusher: "So was President Andrew Johnson, and more recently, President Donald J. Trump."

Both the law and precedent were different in 1868 than today.
At the time precedent was the SCOTUS Marbury vs. Madison decision and Tenure was the law.

woodpusher: "The knowledge that the Tenure of Office Act was unconstitution is notorious.
For what ridiculous purpose do you raise it from its grave and support it?"

Because you lied about it!
At the time it was the law and Johnson broke it.
By stark contrast Lincoln broke no laws and yet you constantly lie about that too.

woodpusher: "Whatever makes you feel the compulsion to say that you are not a lawyer?
Argument based upon the Tenure in Office Act, notoriously known to be unconstitutional, makes that clear."

I'm a citizen and student of history.
I notice that the 1867 Tenure in Office Act was amended for President Grant in 1869, then repealed entirely in 1887.
In 1926, Chief Justice (former President) Taft wrote for the 6-3 majority that a similar law was unconstitutional, also referring back, in dicta, to parts of the 1867 Tenure act as "invalid".

Sure, all that is well and good, some 59 years later, but at the time, in 1867 the precedent, as pointed out by Brandeis in 1926, was Marbury vs. Madison which:

"...assumed, as the basis of decision, that the President, acting alone, is powerless to remove an inferior civil officer appointed for a fixed term with the consent of the Senate; and that case was long regarded as so deciding." "

Indeed, McReynolds in 1926, also dissenting from Taft studied the Constitutional Convention notes and said that,

"he found no language in the Constitution or in the notes from the Convention intended to grant the President the 'illimitable power' to fire every appointed official, 'as caprice may suggest', in the entire government with the exception of judges."

Of course, I agree with Taft that the President can "at pleasure" fire confirmed executive branch officials, but at the time the Tenure of Office Act simply stated what had been assumed as Founders Intent since at least 1803.
The Act was valid and Johnson broke it, but Trumbull on his own authority declared it "unconstitutional".

By stark contrast Lincoln broke no law and was eventually authorized by Congress to suspend habeas corpus as necessary.

woodpusher: "What is it with your strange penchant for unconstitutional acts?"

What is it with your strange penchant for hatred of and lying about Lincoln?

[woodpusher]

woodpusher: "For what purpose do you invoke the Tenure of Office Act, an Act notoriously known to be unconstitutional?

How could President Andrew Johnson violate a "law" which was unconstitutional and null and void ab initio?"

First of all, "null and void ab initio" was not used in any report I've seen, instead parts of the Tenure of Office Act were said (in 1926 in dicta) to be "invalid".

So, you claimed that Lincoln broke the law and Johnson didn't when the truth is just the opposite: Johnson broke an actual law but Lincoln didn't.

Yes, SCOTUS declared, in dicta, 59 years later, parts of the law Johnson broke to be "invalid", but that was never Trumbull's call to make.

woodpusher: "Trumbull was right, beyond any reasonable doubt and to a moral certainty."

Nonsense, Trumbull assumed for himself the authority of the Supreme Court to overturn precedent and declare a law "unconstitutional".

woodpusher: "So was President Andrew Johnson, and more recently, President Donald J. Trump."

Both the law and precedent were different in 1868 than today.

At the time precedent was the SCOTUS Marbury vs. Madison decision and Tenure was the law.

woodpusher: "The knowledge that the Tenure of Office Act was unconstitution is notorious.

For what ridiculous purpose do you raise it from its grave and support it?"

Because you lied about it!

At the time it was the law and Johnson broke it.

By stark contrast Lincoln broke no laws and yet you constantly lie about that too.

woodpusher: "Whatever makes you feel the compulsion to say that you are not a lawyer?

Argument based upon the Tenure in Office Act, notoriously known to be unconstitutional, makes that clear."

I'm a citizen and student of history.

I notice that the 1867 Tenure in Office Act was amended for President Grant in 1869, then repealed entirely in 1887.

In 1926, Chief Justice (former President) Taft wrote for the 6-3 majority that a similar law was unconstitutional, also referring back, in dicta, to parts of the 1867 Tenure act as "invalid".

Your legal nonsense gets you nowhere. It appears to be more Wikipedia nonsense. Perhaps you should read what the U.S. Supreme Court said. Taft wrote "the Tenure of Office Act of 1867, in so far as it attempted to prevent the President from removing executive officers who had been appointed by him by and with the advice and consent of the Senate, was invalid, and that subse­quent legislation of the same effect was equally so.

From the Syllabus of Myers v United States.

The question, (1) Whether a judge appointed by the President with the consent of the Senate under an act of Congress, not under authority of Art. IlI of the Constitution, can be removed by the President alone without the consent of the Senate; (2), whether the legislative decision of 1789 covers such a case; and (3), whether Congress may provide for his removal in some other way, present considerations different from those which apply in the removal of executive officers, and are not herein decided. Pp. 154-158.

This Court has recognized (United States v. Perkins, 116 U. S. 483) that Congress may prescribe incidental regulations controlling and restricting the heads of departments in the exercise of the power of removal; but it has never held, and could not reasonably hold, that the excepting clause enables Congress to draw to itself, or to either branch of it, the power to remove or the right to participate in the exercise of that power. To do this would be to go beyond the words and implications of that clause and to infringe the constitutional principle of the separation of governmental powers. P. 161.

Assuming the power of Congress to regulate removals as incidental to the exercise of its constitutional power to vest appointments of inferior officers in the heads of departments, certainly so long as Congress does not exercise that power, the power of removal must remain where the Constitution places it,—with the President, as part of the executive power, in accordance with the legislative decision of 1789. P. 161.

Whether the action of Congress in removing the necessity for the advice and consent of the Senate, and putting the power of appointment in the President alone, would make his power of removal in such case any more subject to Congressional legislation than before, is a question not heretofore decided by this Court and not presented or decided in this case. P. 161.

Congress is only given power to provide for appointments and removals of inferior officers after it has vested, and on condition that it does vest, their appointment in other authority than the President with the Senate's consent. P. 164.

Myers, Administratrix, v. United States, 272 U.S. 106 (1926)

Opinion of the Court at 112-113:

On June 16, 1789, the House resolved itself into a Committee of the Whole on a bill proposed by Mr. Madi­son for establishing an executive department to be de­nominated the Department of Foreign Affairs, in which the first clause, after stating the title of the officer and describing his duties, had these words: “to be removable from office by the President of the United States.” 1 An­nals of Congress, 455. After a very full discussion the question was put: shall the words “to be removable by the President” be struck out? It was determined in the negative—yeas 20, nays 34. 1 Annals of Congress, 576.

On June 22, in the renewal of the discussion, “Mr. Benson moved to amend the bill, by altering the second clause, so as to imply the power of removal to be in the President alone. The clause enacted that there should be a chief clerk, to be appointed by the Secretary of Foreign Affairs, and employed as he thought proper, and who, in case of vacancy, should have the charge and cus­tody of all records, books, and papers appertaining to the department. The amendment proposed that the chief clerk, ‘whenever the said principal officer shall be removed from office by the President of the United States, or in any other case of vacancy,’ should during such vacancy, have the charge and custody of all records, books, and papers appertaining to the department.” 1 Annals of Congress, 578.

“Mr. Benson stated that his objection to the clause ‘to be removable by the President’ arose from an idea that the power of removal by the President hereafter might appear to be exercised by virtue of a legislative grant only, and consequently be subjected to legislative instability, when he was well satisfied in his own mind that it was fixed by a fair legislative construction of the Constitution.” 1 Annals of Congress, 579.

“Mr. Benson declared, if he succeeded in this amend­ment, he would move to strike out the words in the first clause, ‘to be removable by the President’ which appeared somewhat like a grant. Now, the mode he took would evade that point and establish a legislative con­struction of the Constitution. He also hoped his amend­ment would succeed in reconciling both sides of the House to the decision, and quieting the minds of gentlemen.” 1 Annals of Congress, 578.

Mr. Madison admitted the objection made by the gen­tleman near him (Mr. Benson) to the words in the bill. He said: “They certainly may be construed to imply a legislative grant of the power. He wished everything like ambiguity expunged, and the sense of the House explicitly declared, and therefore seconded the motion. Gentlemen have all along proceeded on the idea that the Constitution vests the power in the President; and what arguments were brought forward respecting the con­venience or inconvenience of such disposition of the power, were intended only to throw light upon what was meant by the compilers of the Constitution. Now, as the words proposed by the gentleman from New York expressed to his mind the meaning of the Constitution, he should be in favor of them, and would agree to strike out those agreed to in the committee.” 1 Annals of Con­gress, 578, 579.

- - - - - - - - - -

Opinion of the Court at page 114:

It is very clear from this history that the exact ques­tion which the House voted upon was whether it should recognize and declare the power of the President under the Constitution to remove the Secretary of Foreign Affairs without the advice and consent of the Senate. That was what the vote was taken for. Some effort has been made to question whether the decision carries the result claimed for it, but there is not the slightest doubt, after an examination of the record, that the vote was, and was intended to be, a legislative declaration that the power to remove officers appointed by the President and the Senate vested in the President alone, and until the Johnson Impeachment trial in 1868, its meaning was not doubted even by those who questioned its soundness.

Opinion of the Court at page 161:

But the Court never has held, nor reasonably could hold, although it is argued to the contrary on behalf of the appellant, that the excepting clause enables Congress to draw to itself, or to either branch of it, the power to remove or the right to participate in the exercise of that power. To do this would be to go beyond the words and implications of that clause and to infringe the constitutional principle of the separation of governmental powers.

Opinion of the Court at page 174-176

What, then, are the elements that enter into our deci­sion of this case? We have first a construction of the Constitution made by a Congress which was to provide by legislation for the organization of the Government in accord with the Constitution which had just then been adopted, and in which there were, as representatives and senators, a considerable number of those who had been members of the Convention that framed the Constitution and presented it for ratification. It was the Congress that launched the Government. It was the Congress that rounded out the Constitution itself by the proposing of the first ten amendments which had in effect been prom­ised to the people as a consideration for the ratification. It was the Congress in which Mr. Madison, one of the first in the framing of the Constitution, led also in the organization of the Government under it. It was a Con­gress whose constitutional decisions have always been regarded, as they should be regarded, as of the greatest weight in the interpretation of that fundamental instru­ment. This construction was followed by the legislative department and the executive department continuously for seventy-three years, and this although the matter, in the heat of political differences between the Executive and the Senate in President Jackson’s time, was the sub­ject of bitter controversy, as we have seen. This Court has repeatedly laid down the principle that a contempo­raneous legislative exposition of the Constitution when the founders of our Government and framers of our Con­stitution were actively participating in public affairs, acquiesced in for a long term of years, fixes the construc­tion to be given its provisions. Stuart v. Laird, 1 Cranch 209, 309; Martin v. Hunter's Lessee, 1 Wheat. 304, 351; Cohens v. Virginia, 6 Wheat. 264, 420; Prigg v. Pennsyl­vania, 16 Pet. 544, 621; Cooley v. Board of Wardens, etc., 12 How. 299, 315; Burroughs-Giles Lithographing Com­pany v. Sarony, 111 U. S. 53, 57; Ames v. Kansas, 111 U. S. 449, 463-469; The Laura, 114 U. S. 411, 416; Wis­consin v. Pelican Ins. Co., 127 U. S. 265, 297; McPherson v. Blacker, 146 U. S. 1, 28, 33, 35; Knowlton v. Moore, 178 U. S. 41, 56; Fairbank v. United States, 181 U. S. 283, 308; Ex parte Grossman, 267 U. S. 87, 118.

We are now asked to set aside this construction, thus buttressed, and adopt an adverse view, because the Con­gress of the United States did so during a heated political difference of opinion between the then President and the majority leaders of Congress over the reconstruction measures adopted as a means of restoring to their proper status the States which attempted to withdraw from the Union at the time of the Civil War. The extremes to which the majority in both Houses carried legislative measures in that matter are now recognized by all who calmly review the history of that episode in our Govern­ment, leading to articles of impeachment against Presi­dent Johnson, and his acquittal. Without animadverting on the character of the measures taken, we are cer­tainly justified in saying that they should not be given the weight affecting proper constitutional construction to be accorded to that reached by the First Congress of the United States during a political calm and acquiesced in by the whole Government for three-quarters of a century, especially when the new construction contended for has never been acquiesced in by either the executive or the judicial departments. While this Court has studiously avoided deciding the issue until it was presented in such a way that it could not be avoided, in the references it has made to the history of the question, and in the pre­sumptions it has indulged in favor of a statutory con­struction not inconsistent with the legislative decision of 1789, it has indicated a trend of view that we should not and can not ignore. When, on the merits, we find our conclusion strongly favoring the view which prevailed in the First Congress, we have no hesitation in holding that conclusion to be correct; and it-therefore follows that the Tenure of Office Act of 1867, in so far as it attempted to prevent the President from removing executive officers who had been appointed by him by and with the advice and consent of the Senate, was invalid, and that subse­quent legislation of the same effect was equally so.

For the reasons given, we must therefore hold that the provision of the law of 1876, by which the unrestricted power of removal of first class postmasters is denied to the President, is in violation of the Constitution, and invalid.

The Court reviewed the history of the relevant constitutional provision, and found the 1867 legislation impossible to uphold, and attributed it to a Congress that went to extremes, as recognized by all who calmly review the history of that episode in our government, which apparently excludes BroJoeK.

And the Court noted that "we are certainly justified in saying that they should not be given the weight affecting proper constitutional construction to be accorded to that reached by the First Congress of the United States during a political calm and acquisced in by the whole Government for three-quarters of a century, especially when the new construction contended for has never been acquiesced in by either the executive or the judicial departments."

A dictum is a statement, remark, or observation in a judicial opinion not necessary for the decision of the case.

In Myers, where the Appellant's argument was based upon the unconstitutional Act of 1876, whose relevant provision was could not be distinguished from the Act of 1867. The Court directly found the Act of 1867 to have been repugnant to the Constitution, and therefore null and void ab initio, and that any subsequent legislation to the same effect, such as the Act of 1876, was therefore equally unconstitutional and null and void ab initio. And the Court further held that, "we must therefore hold that the provision of the law of 1876, by by which the unrestricted power of removal of first class postmasters is denied to the President, is in violation of the Constitution, and invalid."

It is not a dictum when it is necessary and central to the case.

http://law2.umkc.edu/faculty/projects/ftrials/impeach/imp_tenure.html

In 1926, in the case of Myers vs. United States, the Supreme Court, in an opinion by Chief Justice Taft, held unconstitutional a law requiring the consent of the Senate for removal of certain non-Cabinet officials

Aside from the observable fact that it is not a dictum, my source here is a law school, yours is apparently some clueless, anonymous hockey puck on Wikipedia.

As a supposed student of history who expounds upon the law, you should get your head out of Wikipedia and try a few court opinions and law books.

When a law is struck down as repugnant to the Constitution, it is struck down ab initio, as if it never existed. The enacting body had no authority to enact it, and legally it never existed.

Marbury v. Madison, 5 U.S. 137 (1803), Opinion of the Court

5 U.S.176:

The question whether an act repugnant to the Constitution can become the law of the land is a question deeply interesting to the United States, but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it.

That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments.

The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited

5 U.S. 177

and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.

Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.

Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.

This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject.

If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

5 U.S. 178

So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.

This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

[woodpusher]

[BroJoeK #293] I'm a citizen and student of history.

I notice that the 1867 Tenure in Office Act was amended for President Grant in 1869, then repealed entirely in 1887.

In 1926, Chief Justice (former President) Taft wrote for the 6-3 majority that a similar law was unconstitutional, also referring back, in dicta, to parts of the 1867 Tenure act as "invalid".

Sure, all that is well and good, some 59 years later, but at the time, in 1867 the precedent, as pointed out by Brandeis in 1926, was Marbury vs. Madison which:

"...assumed, as the basis of decision, that the President, acting alone, is powerless to remove an inferior civil officer appointed for a fixed term with the consent of the Senate; and that case was long regarded as so deciding."

You are a "student of history" to the extent that you selectively cut and paste from Wikipedia, and you fake legal knowledge by selectively and misleadingly quoting from Wikipedia, from a six paragraph article about the Court's 244 pages of Myers v. United States, of which the Opinion of the Court occupies 102 pages. It is patently obvious that you have neither read the Court opinions in Marbury nor Myers. Your total commentary is gleaned from six paragraphs of Wikipedia, and filled in with your ridiculous, make believe, legal commentary.

A further look at the six paragraphs of Wikipedia shows that you are primarily a student of dishonesty.

https://en.wikipedia.org/wiki/Myers_v._United_States

In 1920, Frank S. Myers, a First-Class Postmaster in Portland, Oregon, was removed from office by President Woodrow Wilson. An 1876 federal law provided that "Postmasters of the first, second, and third classes shall be appointed and may be removed by the President with the advice and consent of the Senate." Myers argued that his dismissal violated this law, and he was entitled to back pay for the unfilled portion of his four-year term.

Chief Justice William Howard Taft, writing for the Court, noted that the Constitution does mention the appointment of officials, but is silent on their dismissal. An examination of the notes of the Constitutional Convention, however, showed that this silence was intentional: the Convention did discuss the dismissal of executive-branch staff, and believed it was implicit in the Constitution that the President did hold the exclusive power to remove his staff, whose existence was an extension of the President's own authority.

The Court therefore found that the statute was unconstitutional, for it violated the separation of powers between the executive and legislative branches. In reaching this decision, it also expressly found the Tenure of Office Act, which had imposed a similar requirement on other Presidential appointees and played a key role in the impeachment of President Andrew Johnson, to have been invalid; it had been repealed by Congress some years before this decision.

In a lengthy dissent, Justice McReynolds used an equally exhaustive analysis of quotes from members of the Constitutional Convention, writing that he found no language in the Constitution or in the notes from the Convention intended to grant the President the "illimitable power" to fire every appointed official, "as caprice may suggest", in the entire government with the exception of judges.

In a separate dissent, Justice Brandeis wrote that the fundamental case deciding the power of the Supreme Court, Marbury v. Madison, "assumed, as the basis of decision, that the President, acting alone, is powerless to remove an inferior civil officer appointed for a fixed term with the consent of the Senate; and that case was long regarded as so deciding."

In a third dissent, Justice Holmes noted that it was within the power of Congress to abolish the position of Postmaster entirely, not to mention to set the position's pay and duties, and he had no problem believing Congress also ought to be able to set terms of the position's occupiers.

Brandeis dissenting at 242: [footnotes omitted]

In Marbury v. Madison, 1 Cranch 137, 167, it was assumed, as the basis of decision, that the President, acting alone, is powerless to remove an inferior civil officer appointed for a fixed term with the consent of the Senate; and that case was long regarded as so deciding. In no case, has this Court determined that the President's power of removal is beyond control, limitation, or regulation by Congress. Nor has any lower federal court ever so decided. This is true of the power as it affects officers in the Army or the Navy and the high political officers like heads of departments, as well as of the power in respect to inferior statutory offices in the executive branch. Continuously for the last fifty-eight years, laws comprehensive in character, enacted from time to time with the approval of the President, have made removal from the great majority of the inferior presidential offices dependent upon the consent of the Senate. Throughout that period these laws have been continuously applied. We are requested to disregard the authority of Marbury v. Madison and to overturn this long established constitutional practice.

The majority, the prevailing opinion of the Court, held that the Constitution intended to, and did, confer the full authority of removal to the President, with no power of the Senate to interfere. Assumptions do not make holdings or precedents, and control nothing.

Recall that Lincoln appointed and removed military officers with some regularity, and he did not seek or obtain the consent of the Senate. So much for the meritless and rejected proposition that Marbury was binding precedent.

Chief Justice Taft, in writing the Opinion of the Court in Myers, spent dozens of pages reducing the Brandeis dissent to a smoking ruin. Taft eviscerated the dissent, with constitutional history and legal precedent. The following is a sample of what you chose to ignore.

Myers, Administratrix, v. United States, 272 U.S. 52 (1926)

Myers, Opinion of the Court at 272 U.S. 139

The words of a second great constitutional authority, quoted as in conflict with the Congressional decision, are those of Chief Justice Marshall. They were used by him in his opinion in Marbury v. Madison, 1 Cranch, 137 (1803). The judgment in that case is one of the great landmarks in the history of the construction of the Con­stitution of the United States, and is of supreme author­ity, first, in respect of the power and duty of the Supreme Court and other courts to consider and pass upon the validity of acts of Congress enacted in violation of the limitations of the Constitution, when properly brought before them in cases in which the rights of the litigating parties require such consideration and decision, and, sec­ond, in respect of the lack of power of Congress to vest in the Supreme Court original jurisdiction to grant the remedy of mandamus in cases in which by the Constitu­tion it is given only appellate jurisdiction. But it is not to be regarded as such authority in respect of the

Myers, Opinion of the Court at 272 U.S. 140

power of the President to remove officials appointed by the advice and consent of the Senate, for that question was not before the Court.

The case was heard upon a rule served upon James Madison, Secretary of State, to show cause why a writ of mandamus should not issue directing the defendant, Madison, to deliver to William Marbury his commission as a justice of the peace for the County of Washington in the District of Columbia. The rule was discharged by the Supreme Court for the reason that the Court had no jurisdiction in such a case to issue a writ for mandamus.

The Court had, therefore, nothing before it calling for a judgment upon the merits of the question of issuing the mandamus. Notwithstanding this, the opinion considered preliminarily, first, whether the relator had the right to the delivery of the commission, and, second, whether it was the duty of the Secretary of State to deliver it to him, and a duty which could be enforced in a court of com­petent jurisdiction at common law by a writ of mandamus. The facts disclosed by affidavits filed were, that President Adams had nominated Marbury to be a justice of the peace in the District of Columbia, under a law of Congress providing for such appointment, by and with the advice and consent of the Senate, for the term of five years, and that the Senate had consented to such an appointment ; that the President had signed the commission as provided by the Constitution, and had transmitted it to the Secre­tary of State, who, as provided by statute, had impressed the seal of the United States thereon. The opinion of the Chief Justice on these questions was, that the commission was only evidence of the appointment; that, upon de­livery of the signed commission by the President to the Secretary of State, the office was filled and the occupant was thereafter entitled to the evidence of his appointment in the form of the commission; that the duty of the Secre­tary in delivering the commission to the officer entitled

Myers, Opinion of the Court at 272 U.S. 141

was merely ministerial and could be enforced by manda­mus; that the function of the Secretary in this regard was entirely to be distinguished from his duty as a subordinate to the President in the discharge of the President’s politi­cal duties which could not be controlled.

It would seem that this conclusion applied, under the reasoning of the opinion, whether the officer was remov­able by the President or not, if in fact the President had not removed him. But the opinion assumed that, in the case of a removable office, the writ would fail, on the pre­sumption that there was in such a case discretion of the appointing power to withhold the commission. And so the Chief Justice proceeded to express an opinion on the question whether the appointee was removable by the President. He said: “As the law creating the office, gave the officer a right to hold it for five years, independent of the executive, the appointment was not revocable, but vested in the officer legal rights which are protected by the laws of his country.”

There was no answer by Madison to the rule issued in the case. The case went by default. It did not appear, even by avowed opposition to the issue of the writ, that the President had intervened in the matter at all. It would seem to have been quite consistent with the case as shown that this was merely an arbitrary refusal by the Secretary to perform his ministerial function, and, there­fore, that the expression of opinion that the officer was not removable by the President was unnecessary, even to the conclusion that a writ in a proper case could issue. However this may be, the whole statement was certainly obiter dictum with reference to the judgment actually reached. The question whether the officer was removable was not argued to the Court by any counsel contending for that view. Counsel for the relator, who made the only argument, contended that the officer was not removable by the President, because- he held a judicial office and

Myers, Opinion of the Court at 272 U.S. 142

under the Constitution could not be deprived of his office for the five years of his term by Presidential action. The opinion contains no wider discussion of the question than that quoted above.

While everything that the great Chief Justice said, whether obiter dictum or not, challenges the highest and most respectful consideration, it is clear that the mere statement of the conclusion made by him, without any examination of the discussion which went on in the First Congress, and without reference to the elaborate argu­ments there advanced to maintain the decision of 1789, can not be regarded as authority in considering the weight to be attached to that decision—a decision, which as we shall see, he subsequently recognized as a well-established rule of constitutional construction.

In such a case we may well recur to the Chief Justice’s own language in Cohens v. Virginia, 6 Wheat. 264, 399, in which, in declining to yield to the force of his previous language in Marbury v. Madison, which was unnecessary to the judgment in that case and was obiter dictum, he said:

“It is a maxim, not to be disregarded, that general expressions, in every opinion, are to be taken in connec­tion with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.”

The weight of this dictum of the Chief Justice as to a Presidential removal, in Marbury v. Madison, was considered by this Court in Parsons v. United States, 167

Myers, Opinion of the Court at 272 U.S. 143

U. S. 324. It was a suit by Parsons against the United States for the payment of the balance due for his salary and fees as United States District Attorney for Alabama. He had been commissioned as such, under the statute, for the term of four years from the date of the commis­sion, subject to the conditions prescribed by law. There was no express power of removal provided. Before the end of the four years he was removed by the President. He was denied recovery.

The language of the Court in Marbury v. Madison, already referred to, was pressed upon this Court to show that Parsons was entitled, against the Presidential action of removal, to continue in office. If it was authoritative and stated the law as to an executive office, it ended the case; but this Court did not recognize it as such, for the reason that the Chief Justice’s language relied on was not germane to the point decided in Marbury v. Madison. If his language was more than a dictum, and was a deci­sion, then the Parson’s case overrules it.

Another distinction, suggested by Mr. Justice Peckham in Parson’s case was that the remarks of the Chief Justice were in reference to an office in the District of Columbia, over which, by Art. I, sec. 8, subd. 17, Congress had exclusive jurisdiction in all cases, and might not apply to offices outside of the District in respect to which the constant practice and the Congressional decision had been the other way (p. 335). How much weight should be given to this distinction, which might accord to the spe­cial exclusive jurisdiction conferred on Congress over the District power to ignore the usual constitutional separa­tion between the executive and legislative branches of the Government, we need not consider.

If the Chief Justice, in Marbury v. Madison, intended to express an opinion for the Court inconsistent with the legislative decision of 1789, it is enough to observe that he changed his mind; for otherwise it is inconceivable that

Myers, Opinion of the Court at 272 U.S. 144]

he should have written and printed his full account of the discussion and decision in the First Congress and his acquiescence in it, to be found in his Life of Washington (Vol. V, pages 192-200).

He concluded his account as follows:

“After an ardent discussion which consumed several days, the committee divided; and the amendment [i. e. to strike out from the original bill the words ‘to be remov­able by the President ’] was negatived by a majority of thirty-four to twenty. The opinion thus expressed by the house of representatives did not explicitly convey their sense of the Constitution. Indeed the express grant of the power to the president, rather implied a right in the legislature to give or withhold it at their discretion. To obviate any misunderstanding of the principle on which the question had been decided, Mr. Benson [later] moved in the house, when the report of the committee of the whole was taken up, to amend the second clause in the bill so as clearly to imply the power of removal to be solely in the president. He gave notice that if he should succeed in this, he would move to strike out the words which had been the subject of debate. If those words continued, he said the power of removal by the president might hereafter appear to be exercised by virtue of a legislative grant only and consequently be subjected to legislative instability; when he was well satisfied in his own mind, that it was by fair construction, fixed in the constitution. The motion was seconded by Mr. Madison, and both amendments were adopted. As the bill passed into a law, it has ever been considered as a full expression of the sense of the legislature on this impor­tant part of the American constitution.”

This language was first published in 1807, four years after the judgment in Marbury v. Madison, and the edi­tion was revised by the Chief Justice in 1832. 3 Bev­eridge, Life of Marshall, 248, 252, 272, 273.

Myers, Opinion of the Court at 272 U.S. 145

Congress, in a number of acts, followed and enforced the legislative decision of 1789 for seventy-four years. In the act of the First Congress, which adapted to the Constitution the ordinance of 1787 for the government of the Northwest Territory, which had provided for the appointment and removal of executive territorial officers by the Congress under the Articles of Confederation, it was said “in all cases where the United States in Con­gress assembled, might, by the said ordinance revoke Any commission or remove from any office, the President is hereby declared to have the same powers of revocation and removal.” 1 Stat. 53, c. 8. This was approved eleven days after the act establishing the Department of Foreign Affairs, and was evidently in form a declara­tion in accord with the legislative constitutional con­struction of the latter act. In the provision for the Treasury and War Departments, the same formula was used as occurred in the act creating the Department of Foreign Affairs; but it was omitted from other creative acts only because the decision was thought to be settled constitutional construction. In re Hennen, 13 Peters 230, 259.

Occasionally we find that Congress thought it wiser to make express what would have been understood. Thus, in the Judiciary Act of 1789, we find it provided in § 27, 1 Stat. 87, c. 20, “that a marshal shall be appointed in and for each district for the term of four years, but shall be removable at pleasure, whose duty it shall be to attend the District and Circuit Courts.” That act became a law on September 24th, a month after the Congressional debate on removals. It was formulated by a Senate com­mittee, of which Oliver Ellsworth was chairman, and which presumably was engaged in drafting it during the time of that debate. Section 35 of the same act provided for the appointment of an attorney for the United States to prosecute crimes and conduct civil actions on behalf of

Myers, Opinion of the Court at 272 U.S. 146

the United States, but nothing was said as to his term of office or as to his removal. The difference in the two cases was evidently to avoid any inference from the fixing of the term that a conflict with the legislative deci­sion of 1789 was intended.

In the Act of May 15, 1820, 3 Stat. 582, c. 102, Con­gress provided that thereafter all district attorneys, col­lectors of customs, naval officers, surveyors of the cus­toms, navy agents, receivers of public moneys for land, registers of the land office, paymasters in the army, the apothecary general, the assistant apothecaries general, and the commissary general of purchases, to be appointed under the laws of the United States, should be appointed for the term of four years, but should be removable from office at pleasure.

It is argued that these express provisions for removal at pleasure indicate that, without them, no such power would exist in the President. We can not accede to this view. Indeed, the conclusion that they were adopted to show conformity to the legislative decision of 1789 is au­thoritatively settled by a specific decision of this Court.

In the Parsons case, 167 U. S. 324, already referred to, the exact question which the Court had to decide was whether under § 769 of the Revised Statutes, providing that district attorneys should be appointed for a term of four years and their commissions should cease and expire at the expiration of four years from their respective dates, the appellant, having been removed by the Presi­dent from his office as district attorney before the end of his term, could recover his salary for the remainder of the term. If the President had no power of removal, then he could recover. The Court held that under that section the President did have the power of removal, be­cause of the derivation of the section from the Act of 1820, above quoted. In § 769 the specific provision of the Act of 1820 that the officers should be removable

Myers, Opinion of the Court at 272 U.S. 147

from office at pleasure was omitted. This Court held that the section should be construed as having been passed in the light of the acquiescence of Congress in the decision of 1789, and therefore included the power of removal by the President, even though the clause for removal was omitted. This reasoning was essential to the conclusion reached and makes the construction by this Court of the Act of 1820 authoritative. The Court used, in respect of the Act of 1820, this language (167 U. S. 324, 339):

“The provision for a removal from office at pleasure was not necessary for the exercise of that power by the President, because of the fact that he was then regarded as being clothed with such power in any event. Con­sidering the construction of the Constitution in this re­gard as given by the Congress of 1789, and having in mind the constant and uniform practice of the Govern­ment in harmony with such construction, we must con­strue this act as providing absolutely for the expiration of the term of office at the end of four years, and not as giving a term that shall last, at all events, for that time, and we think the provision that the officials were remov­able from office at pleasure was but a recognition of the construction thus almost universally adhered to and ac­quiesced in as to the power of the President to remove.”

In the Act of July 17, 1862, 12 Stat. 596, c. 200, Con­gress actually requested the President to make removals in the following language:

“the President of the United States be, and hereby is, authorized and requested to dismiss and discharge from the military sendee, either in the army, navy, marine corps, or volunteer force, any officer for any cause which, in his judgment, either renders such officer unsuitable for, or whose dismission would promote, the public service.”

Attorney General Devens (15 Op. A. G. 421) said of this act that, so far as it gave authority to the President,

Myers, Opinion of the Court at 272 U.S. 148

it was simply declaratory of the long-established law; that the force of the act was to be found in the word “ re­quested,” by which it was intended to re-enforce strongly this power in the hands of the President at a great crisis of the state—a comment by the Attorney General which was expressly approved by this Court in Blake v. United States, 103 U. S. 227, 234.

The acquiescence in the legislative decision of 1789 for nearly three-quarters of a century by all branches of the Government has been affirmed by this Court in unmis­takable terms. In Parsons v. United States, already cited, in which the matter of the power of removal was reviewed at length in connection with that legislative decision, this Court, speaking by Mr. Justice Peckham, said (page 330):

“Many distinguished lawyers originally had very dif­ferent opinions in regard to this power from the one ar­rived at by this Congress, but when the question was alluded to in after years they recognized that the decision of Congress in 1789 and the universal practice of the Gov­ernment under it, had settled the question beyond any power of alteration.”

We find this confirmed by Chancellor Kent’s and Mr. Justice Story’s comments. Chancellor Kent, in writing to Mr. Webster in January, 1830, concerning the decision of 1789, said:

“I heard the question debated in the summer of 1789, and Madison, Benson, Ames, Lawrence, etc. were in favor of the right of removal by the President, and such has been the opinion ever since and the practice. I thought they were right because I then thought this side uniformly right.”

Then, expressing subsequent pause and doubt upon this construction as an original question because of Hamilton’s original opinion in The Federalist, already referred to, he continued:

“On the other hand, it is too late to call the President’s power in question after a declaratory act of Congress and

Myers, Opinion of the Court at 272 U.S. 149

an acquiescence of half a century. We should hurt the reputation of our government with the world, and we are accused already of the Republican tendency of reducing all executive power into the legislative, and making Con­gress a national convention. That the President grossly abuses the power of removal is manifest, but it is the evil genius of Democracy to be the sport of factions.” 1 Private Correspondence of Daniel Webster, Fletcher Web­ster ed., 486; 1903 National ed., Little, Brown Co.

[woodpusher]

[BroJoeK #293At the time precedent was the SCOTUS Marbury vs. Madison decision and Tenure was the law.

Nonsense. The comment from Marbury was obiter dictum, and if it were more, the decision in Parsons overruled it. Myers, Opinion of the Court at 272 U.S. 142.

Marbury v. Madison 5 U.S. 137 (1803) was a case about an appointment, not a removal. It was impossible for Marbury to issue a holding, or set a precedent, about the President's removal authority. A dictum never controls anything.

Marbury is definitive precedent for the fact that an act, repugnant to the Constitution, cannot become a law. "[A] legislative act contrary to the Constitution is not law."

Marbury, Opinion of the Court at 5 U.S. 154:

In the order in which the court has viewed this subject, the following questions have been considered and decided.

1st Has the applicant a right, to the commission he demands?

2dly. If he has a right, and that right has been violated, do the laws of his country afford him a remedy ?

3dly. If they do afford him a remedy, is it a mandamus issuing from this court ?

Marbury, Opinion of the Court at 5 U.S. 156

It follows too from the existence of this distinction that, if an appointment was to be evidenced by any public act other than the commission, the performance of such public act would create the officer, and if he was not removable at the will of the President, would either give him a right to his commission or enable him to perform the duties without it.

Marbury, Opinion of the Court at 5 U.S. 157

Some point of time must be taken when the power of the Executive over an officer, not removable at his will, must cease. That point of time must be when the constitutional power of appointment has been exercised. And this power has been exercised when the last act required from the person possessing the power has been performed. This last act is the signature of the commission.

Marbury, Opinion of the Court at 162

Where an officer is removable at the will of the Executive, the circumstance which completes his appointment is of no concern, because the act is at any time revocable, and the commission may be arrested if still in the office. But when the officer is not removable at the will of the Executive, the appointment is not revocable, and cannot be annulled. It has conferred legal rights which cannot be resumed.

Marbury, Opinion of the Court at 162

The discretion of the Executive is to be exercised until the appointment has been made. But having once made the appointment, his power over the office is terminated in all cases, where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it.

Mr. Marbury, then, since his commission was signed by the President and sealed by the Secretary of State, was appointed, and as the law creating the office gave the officer a right to hold for five years independent of the Executive, the appointment was not revocable, but vested in the officer legal rights which are protected by the laws of his country.

To withhold the commission, therefore, is an act deemed by the Court not warranted by law, but violative of a vested legal right.

Marbury, Opinion of the Court at 165-166

By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.

In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and, being entrusted to the Executive, the decision of the Executive is conclusive. The application of this remark will be perceived by adverting to the act of Congress for establishing the Department of Foreign Affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the President. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the Courts.

Marbury, Opinion of the Court at 166

The conclusion from this reasoning is that, where the heads of departments are the political or confidential agents of the Executive, merely to execute the will of the President, or rather to act in cases in which the Executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy,

Marbury, Opinion of the Court at 173

The Secretary of State, being a person, holding an office under the authority of the United States, is precisely within the letter of the description, and if this Court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority and assigning the duties which its words purport to confer and assign.

Marbury, Opinion of the Court at 176-178

The authority, therefore, given to the Supreme Court by the act establishing the judicial courts of the United States to issue writs of mandamus to public officers appears not to be warranted by the Constitution, and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised.

The question whether an act repugnant to the Constitution can become the law of the land is a question deeply interesting to the United States, but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it.

That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments.

The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.

Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.

Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.

This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject.

If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.

This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on political institutions — a written Constitution, would of itself be sufficient, in America where written Constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the Constitution of the United States furnish additional arguments in favour of its rejection.

Marbury, Opinion of the Court at 180

Why does a judge swear to discharge his duties agreeably to the Constitution of the United States if that Constitution forms no rule for his government? if it is closed upon him and cannot be inspected by him?

If such be the real state of things, this is worse than solemn mockery. To prescribe or to take this oath becomes equally a crime.

It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.

Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.

The rule must be discharged.

And thus, the Act under discussion was declared "void" and "entirely void," and "a legislative act contrary to the Constitution is not law."

And because the Act, repugnant to the Constitution, was not a law, Marbury was S.O.L.

Nowhere does Marbury set a precedent that the President may not remove a cabinet officer without the consent of the Senate.

Marbury does not involve the removal of anyone from anything. Marbury never held the office to get removed from it.

The Constitution controls any statute found repugnant to it. Such statute is declared entirely void, and could never have been a law. As the statute was declared void, it never empowered or limited anyone. As the statute was declared void, the Court dismissed Marbury's case, while stating that Marbury established every element of his case other than showing that the statute was constitutional.