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The Taft Court (1921–30)

Congressional and Executive Power

CourtSpeak: Myers v. United States Executive Branch Jobs Case (1926)

Chief Justice William Howard Taft (majority): “The power of removal is incident to the power of appointment, not to the power of advising and consenting to appointment, and when the grant of the executive power is enforced by the express mandate to take care that the laws be faithfully executed, it emphasizes the necessity for including within the executive power as conferred the exclusive power of removal.”

Justice James McReynolds (dissenting): “A certain repugnance must attend the suggestion that the President may ignore any provision of an act of Congress under which he has proceeded. He should promote and not subvert orderly government. The serious evils which followed the practice of dismissing civil officers as caprice or interest dictated, long permitted under congressional enactments, are known to all. It brought the public service to a low estate and caused insistent demand for reform…. The long struggle for civil service reform and the legislation designed to insure some security of official tenure ought not to be forgotten. Again and again Congress has enacted statutes prescribing restrictions on removals, and by approving them many Presidents have affirmed its power therein.”

Justice Louis Brandeis (dissenting): “The doctrine of the separation of powers was adopted by the convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power…. Checks and balances were established in order that this should be ‘a government of laws and not of men.’”

Justice Oliver Wendell Holmes (dissenting): “We have to deal with an office that owes its existence to Congress and that Congress may abolish tomorrow. Its duration and the pay attached to it while it lasts depend on Congress alone. Congress alone confers on the President the power to appoint to it and at any time may transfer the power to other hands. With such power over its own creation, I have no more trouble in believing that Congress has power to prescribe a term of life for it free from any interference than I have in accepting the undoubted power of Congress to decree its end.”



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