           Removal of the Assistant Secretary of Commerce
                by the Appointment of a Successor
The removal from office of the Assistant Secretary of Commerce can be properly effected merely by
  the appointment of a successor by the President with the advice and consent of the Senate.

                                                                                  June 10, 1935

                MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

   In accordance with your request I have considered the question whether the
removal from office of Assistant Secretary of Commerce Mitchell can be effected
by the appointment by the President of his successor and confirmation of the
appointment by the Senate.
   It appears that Mr. Mitchell was appointed to the office of Assistant Secretary
of Commerce by the President by and with the advice and consent of the Senate
pursuant to section 8 of the Act of May 20, 1926, Pub. L. No. 69-254, 44 Stat.
568, 573. This section in no wise restricts the authority of the President to remove
an incumbent from such office. It is understood that the resignation of Mr.
Mitchell has been requested but that he has declined to resign, and that the
President desires, if it can legally be done, to remove him from office merely by
the appointment of his successor.
   The question involved was considered by the Supreme Court of the United
States in Ex Parte Hennen, 38 U.S. (13 Pet.) 230 (1839). That case involved the
validity of the appointment of a clerk of the District Court of the United States for
the Eastern District of Louisiana by the Judge of the District Court. While Hennen
was serving as clerk of that Court, to which office he had been duly appointed, the
judge of the district court executed and delivered to John Winthrop a commission
appointing him as clerk. Proceedings in mandamus were brought to require the
judge to restore Hennen to the office. Discussing the effect of the appointment of
Hennen’s successor, the Court said:
          The law giving the District Courts the power of appointing their
       own Clerks, does not prescribe any form in which this shall be done.
       The petitioner alleges that he has heard and believes that Judge Law-
       rence did, on the 18th day of May, 1838, execute and deliver to John
       Winthrop, a commission or appointment as clerk of the District
       Court for the eastern district of Louisiana, and that he entered upon
       the duties of the office, and was recognised by the judge as the only
       legal clerk of the District Court. And in addition to this, notice was
       given by the judge to the petitioner, of his removal from the office of
       clerk, and the appointment of Winthrop in his place; all of which was
       amply sufficient, if the office was held at the discretion of the Court,
       The power vested in the Court was a continuing power; and the mere



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   Removal of the Assistant Secretary of Commerce by the Appointment of a Successor


      appointment of a successor would, per se, be a removal of the prior
      incumbent, so far at least as his rights were concerned. How far the
      rights of third persons may be affected is unnecessary now to con-
      sider. There could not be two clerks at the same time. The offices
      would be inconsistent with each other, and could not stand together.
Id. at 261.
    The Hennen case is cited with approval in Blake v. United States, 103 U.S. (13
Otto) 227 (1880). In that case suit was instituted in the Court of Claims by Blake
to recover the amount alleged to be due him by way of salary as post-chaplain in
the Army from April 28, 1869, to May 14, 1878. On December 24, 1868, Blake
wrote a letter of complaint which was treated by the Secretary of War as a
resignation from office. His successor was appointed by the President and the
appointment was confirmed by the Senate. Blake contended that at the time his
letter was addressed to the Secretary of War he was insane to the extent that he
was irresponsible for his acts, and consequently that his supposed resignation was
inoperative and did not have the effect of vacating the office. The question passed
upon by the Court was: “Did the appointment of Gilmore, by and with the advice
and consent of the Senate, to the post-chaplaincy held by Blake, operate, proprio
vigore, to discharge the latter from the service, and invest the former with the
rights and privileges belonging to that office?” Id. at 230.
    The Court answered the question in the affirmative, and in the course of its
opinion stated:
          It results that the appointment of Gilmore, with the advice and
      consent of the Senate, to the office held by Blake, operated in law to
      supersede the latter, who thereby, in virtue of the new appointment,
      ceased to be an officer in the army from and after, at least, the date at
      which that appointment took effect,—and this, without reference to
      Blake’s mental capacity to understand what was a resignation. He
      was, consequently, not entitled to pay as post-chaplain after July 2,
      1870, from which date his successor took rank. Having ceased to be
      an officer in the army, he could not again become a post-chaplain,
      except upon a new appointment, by and with the advice and consent
      of the Senate.

Id. at 237.
    This principle is also recognized in Wallace v. United States, wherein the Court
states:
         While, thus, the validity and effect of statutory restrictions upon
      the power of the President alone to remove officers of the Army and
      Navy and civil officers have been the subject of doubt and discus-
      sion, it is settled, McElrath v. United States, 102 U.S. 426; Blake v.




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          Supplemental Opinions of the Office of Legal Counsel in Volume 1


      United States, 103 U.S. 227; Keyes v. United States, 109 U.S. 336;
      Mullan v. United States, 140 U.S. 240, that the President with the
      consent of the Senate may effect the removal of an officer of the
      Army or Navy by the appointment of another to his place, and that
      none of the limitations in the statutes affects his power of removal
      when exercised by and with the consent of the Senate. Indeed the
      same ruling has been made as to civil officers. Parsons v. United
      States, 167 U.S. 324.
257 U.S. 541, 545 (1922).
   The practice of removing incumbents from office by the appointment of their
successors by the President and the confirmation of such appointments by the
Senate has existed from an early date. In Myers v. United States, Mr. Justice
Brandeis, in his dissenting opinion, states:
         From the foundation of the Government to the enactment of the
      Tenure of Office Act, during the period while it remained in force,
      and from its repeal to this time, the administrative practice in respect
      to all offices has, so far as appears, been consistent with the exist-
      ence in Congress of power to make removals subject to the consent
      of the Senate. The practice during the earlier period was described
      by Webster in addressing the Senate on February 16, 1835:
         “If one man be Secretary of State, and another be appointed, the
         first goes out by the mere force of the appointment of the other,
         without any previous act of removal whatever. And this is the
         practice of the government, and has been, from the first. In all the
         removals which have been made, they have generally been effect-
         ed simply by making other appointments. I cannot find a case to
         the contrary. There is no such thing as any distinct official act of
         removal. I have looked into the practice, and caused inquiries to
         be made in the departments, and I do not learn that any such pro-
         ceeding is known as an entry or record of the removal of an of-
         ficer from office; and the President could only act, in such cases,
         by causing some proper record or entry to be made, as proof of
         the fact of removal. I am aware that there have been some cases
         in which notice has been sent to persons in office that their ser-
         vices are, or will be, after a given day, dispensed with. These are
         usually cases in which the object is, not to inform the incumbent
         that he is removed, but to tell him that a successor either is, or by
         a day named will be, appointed.” 4 Works, 8th ed., 189.




                                        30
    Removal of the Assistant Secretary of Commerce by the Appointment of a Successor


           In 1877, President Hayes, in a communication to the Senate in re-
        sponse to a resolution requesting information as to whether removals
        had been made prior to the appointment of successors, said:
            “In reply I would respectfully inform the Senate that in the in-
            stances referred to removals had not been made at the time the
            nominations were sent to the Senate. The form used for such
            nominations was one found to have been in existence and hereto-
            fore used in some of the Departments, and was intended to inform
            the Senate that if the nomination proposed were approved it
            would operate to remove an incumbent whose name was indicat-
            ed. R.B. Hayes.” 7 Messages and Papers of the President, 481.
           Between 1877 and 1899, the latest date to which the records of
        the Senate are available for examination, the practice has, with few
        exceptions, been substantially the same. It is, doubtless, because of
        this practice, and the long settled rule recently applied in Wallace v.
        United States, 257 U.S. 541, 545, that this Court has not had occa-
        sion heretofore to pass upon the constitutionality of the removal
        clause.
272 U.S. 52, 259–61 (1926) (emphasis in original; footnotes omitted).
  In footnote 28 of Mr. Justice Brandeis’s dissenting opinion, it is stated:
            Since the enactment of the Tenure of Office Act various forms
        have been used to nominate officials to succeed those whose remov-
        al is thereby sought. Examination of their use over a period of thirty-
        two years indicates that no significance is to be attached to the use of
        any particular form. Thus the nomination is sometimes in the form
        A.B. vice C.D. “removed”; sometimes it is “to be removed”; some-
        times “removed for cause”; sometimes “whose removal for cause is
        hereby proposed.”
Id. at 259–60.
    In view of the foregoing, I am of the opinion that the removal of Mr. Mitchell
from office can be properly effected by the appointment of his successor by the
President and confirmation thereof by the Senate.

                                                       ANGUS D. MACLEAN
                                                      Assistant Solicitor General*


   *
     Editor’s Note: The version of this opinion in the Unpublished Opinions of the Assistant Solicitor
General contains the following postscript: “Mr. Mitchell’s commission contains no fixed term,
according to my information, but provides that he is to hold ‘subject to the conditions prescribed by
law.’—A.D.M.”




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