Unknown Ground

Many members of the Interstate Commerce Commission, the Federal Reserve Board, the Federal Trade Commission, the Tariff Commission, the Shipping Board, and even that "watchdog of the Treasury," Comptroller General John R. McCarl, read diligently last week Chief Justice Taft's 55-page decision which upholds the President's power to remove all executive officials without the consent of the Senate (TIME, Nov. 1). Although none of these officials is in any immediate danger of being ousted, yet the feeling hangs heavy that they can be dismissed at the caprice or hostility of the President.

In particular, have the wings of Comptroller General McCarl been clipped. Heretofore, his was a high-handed office--he was not bound by the decisions of any of the executive departments; the Budget Act gave him a term of 15 years during which time he was not removable by the President. So he went doggedly ahead, running his blue pencil through Government expenditures--cutting out teatasters for the Navy, slashing the traveling expense allowances of Federal employes. He enraged many; some staunch Army and Navy men deemed him a menace to their free expansion. Now, perhaps, with the President's ouster power unrestrained, the squirming pencil of "Watchdog" McCarl will pause before striking put that Government-paid turkey dinner of some traveling official.

The only loophole in the Supreme Court's vital decision is that a militant Senate may strike back against the President's power by passing laws which put the appointment of important officials into other hands. Then the Senate could attach any stipulations for removal which it pleased. For example, it could have the Secretary of the Treasury appoint the Comptroller General, and have the Secretary of Commerce appoint the Interstate Commerce Commission. The Constitution makers were cautiously indefinite about the unknown ground between the powers of the President and Congress. It has always been ground teeming with potential danger, but it only becomes a menace to stable government when a hostile Congress and President square off for violent combat: witness the turbulent administration of Andrew Jackson.

Chief Justice Taft's Opinion. The Chief Justice in his decision, a fortnight ago, wrote a 24,000-word history of this ground. There is a scholarly solemnity in his 'document, which was a year and a half in preparation. An extract:

"The Senate has full power to reject newly proposed appointees whenever the President shall remove the incumbents. Such a check enables the Senate to prevent the filling of offices with bad or incompetent men or with those against whom there is tenable objection.

"The power to prevent the removal of an officer who has served under the President is different from the authority to consent to or reject his appointment. When a nomination is made, it may be presumed that the Senate is, or may become, as well advised as to the fitness of the nominee as the President, but in the nature of things the defects in ability or intelligence or loyalty in the administration of the laws of one who has served as an officer under the President are facts as to which the President or his trusted subordinates must be better informed than the Senate, and the power to remove him may, therefore, be regarded as confined, for very sound and practical reasons, to the governmental authority which has administrative control.

"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. . . .

"This court has studiously avoided deciding the issue until it was presented in such a way that it could not be avoided. . . ."

Justice McReynolds' Dissent from the majority opinion was almost emotionally emphatic:

"Nothing short of language clear beyond serious disputation should be held to clothe the President with authority wholly beyond Congressional control arbitrarily to dismiss every officer whom he appoints except a few Judges. There are no such words in the Constitution, and the asserted inference conflicts with the heretofore accepted theory that this Government is one of carefully enumerated powers under an intelligible charter. . . ."

Justice Holmes's Dissent:

"The arguments drawn from the executive power of the President and from his duty to appoint officers of the United States (when Congress does not vest the power elsewhere) to take care that the laws be faithfully executed and to commission all officers of the United States seem to me a spider's web inadequate to control the dominant facts.

"Congress alone confers on the President the power to appoint and at any time may transfer the power to other hands. With such powers 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 interference than I have in accepting the undoubted power of Congress to decree its end. . . ."