Our most distinguished and accepted commentators upon the Constitution concur in the construction thus early given by Congress, and thus sanctioned by the Supreme Court. After a full analysis of the Congressional debate to which I have referred, Mr. Justice Story comes to this conclusion:
After a most animated discussion, the vote finally taken in the House of Representatives was affirmative of the power of removal in the President, without any cooperation of the Senate, by the vote of 34 members against 20. In the Senate the clause in the bill affirming the power was carried by the casting vote of the Vice-President. That the final decision of this question so made was greatly influenced by the exalted character of the President then in office was asserted at the time and has always been believed; yet the doctrine was opposed as well as supported by the highest talents and patriotism of the country. The public have acquiesced in this decision, and it constitutes, perhaps, the most extraordinary case in the history of the Government of a power conferred by implication on the Executive by the assent of a bare majority of Congress which has not been questioned on many other occasions.
Nor is this general acquiescence and silence without a satisfactory explanation.
Chancellor Kent's remarks on the subject are as follows:
On the first organization of the Government it was made a question whether the power of removal in case of officers appointed to hold at pleasure resided nowhere but in the body which appointed, and, of course, whether the consent of the Senate was not requisite to remove. This was the construction given to the Constitution, while it was pending for ratification before the State conventions, by the author of the Federalist. But the construction which was given to the Constitution by Congress, after great consideration and discussion, was different. The words of the act [establishing the Treasury Department] are: "And whenever the same shall be removed from office by the President of the United States, or in any other case of vacancy in the office, the assistant shall act." This amounted to a legislative construction of the Constitution, and it has ever since been acquiesced in and acted upon as a decisive authority in the case. It applies equally to every other officer of the Government appointed by the President, whose term of duration is not specially declared. It is supported by the weighty reason that the subordinate officers in the executive department ought to hold at the pleasure of the head of the department, because he is invested generally with the executive authority, and the participation in that authority by the Senate was an exception to a general principle and ought to be taken strictly. The President is the great responsible officer for the faithful execution of the law, and the power of removal was incidental to that duty, and might often be requisite to fulfill it.