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.
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.
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
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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
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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
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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
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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
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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.
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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
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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
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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,
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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
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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.