Myers v. United States, 272 U.S. 52 (1925)

Author: U.S. Supreme Court

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Myers v. United States, 272 U.S. 52 (1925)

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Myers v. United States

No. 2

Argued December 5, 1923
Reargued April 13, 14, 1925
Decided October 25, 1926
272 U.S. 52



1. A postmaster who was removed from office petitioned the President and the Senate committee on Post Offices for a hearing on any charges filed; protested to the Post Office Department; and, three months before his four-year term expired, having pursued no other occupation and derived no compensation for other service in the interval, began suit in the Court of Claims for salary since removal. No notice of the removal, nor any nomination of a successor, had been sent in the meantime to the Senate whereby his case could have been brought before that body, and the commencement of suit was within a month after the ending of its last session preceding the expiration of the four years. Held that the plaintiff was not guilty of laches. P. 107.

2. Section 6 of the Act of July 12, 1876, providing that

Postmasters of the first, second and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate and shall hold their offices for four years unless sooner removed or suspended according to law,

is unconstitutional in its attempt to make the President’s power of removal dependent upon consent of the Senate. Pp. 107, 176.

3. The President is empowered by the Constitution to remove any executive officer appointed by him by and with the advice and consent of the Senate, and this power is not subject in its exercise to the assent of the Senate, nor can it be made so by an act of Congress. Pp. 119, 125.

4. The provision of Art. II, § 1, of the Constitution that "the Executive power shall be vested in a President" is a grant of the power, and not merely a naming of a department of the government. Pp. 151, 163.

5. The provisions of Art. II, § 2, which blend action by the legislative branch, or by part of it, in the work of the Executive, are limitations upon this general grant of the Executive power which are to be strictly construed, and not to be extended by implication. P. 164.

6. It is a canon of interpretation that real effect should be given to all the words of the Constitution. P. 151.

7. Removal of executive officials from office is an executive function; the power to remove, like the power to appoint, is part of "the Executive power," -- a conclusion which is confirmed by the obligation "to take care that the laws be faithfully executed." Pp. 161, 164.

8. The power of removal is an incident of the power to appoint; but such incident does not extend the Senate’s power of checking appointments, to removals. Pp. 119, 121, 126, 161.

9. The excepting clause in § 2 of Art. II, providing

but Congress may by law vest the appointment of such inferior officers as they may think proper in the President alone, in the courts of law or in the heads of departments,

does not enable Congress to regulate the removal of inferior officers appointed by the President by and with the advice and consent of the Senate. Pp. 158-161.

10. A contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of the Constitution were actively participating in public affairs, acquiesced in for many years, fixes the meaning of the provisions so construed. P. 175.

11. Upon an historical examination of the subject, the Court finds that the action of the First Congress, in 1789, touching the Bill to establish a Department of Foreign Affairs, was a clean-cut and deliberate construction of the Constitution as vesting in the President alone the power to remove officers, inferior as well as superior, appointed by him with the consent of the Senate; that this construction was acquiesced in by all branches of the Government for 73 years, and that subsequent attempts of Congress, through the Tenure of Office Act of March 2, 1867, and other acts of that period, to reverse the construction of 1789 by subjecting the President’s power to remove executive officers appointed by him and confirmed by the Senate to the control of the Senate or lodge such power elsewhere in the Government were not acquiesced in, but their validity was denied by the Executive whenever any real issue over it arose. Pp. 111, 164-176.

12. The weight of congressional legislation as supporting a particular construction of the Constitution by acquiescence depends not only upon the nature of the question, but also upon the attitude of the executive and judicial branches of the government and the number of instances in the execution of the law in which opportunity for objection in the courts or elsewhere has been afforded. P. 170.

13. The provisions of the Act of May 15, 1820, for removal of the officers therein named "at pleasure," were not based on the assumption that, without them, the President would not have that power, but were inserted in acquiescence to the legislative decision of 1789. P. 146.

14. Approval by the President of acts of Congress containing provisions purporting to restrict the President’s constitutional power of removing officers held not proof of Executive acquiescence in such curtailment where the approval was explicable by the value of the legislation in other respects -- as where the restriction was in a rider imposed on an appropriation act. P. 170.

15. Marbury v. Madison, 1 Cranch 137, considered, in connection with Parsons v. United States, 167 U.S. 324, and held not authoritative on the question of removal power here involved. Pp. 139-144, 158.


The questions (1) whether a judge appointed by the President with the consent of the Senate under an act of Congress, not under authority of Art. III of the Constitution, can be removed by the President alone without the consent of the Senate; (2), whether the legislative decision of 1789 covers such a case, and (3), whether Congress may provide for his removal in some other way, present considerations different from those which apply in the removal of executive officers, and are not herein decided. Pp. 154-158.

This Court has recognized (United States v. Perkins, 116 U.S. 483) that Congress may prescribe incidental regulations controlling and restricting the heads of departments in the exercise of the power of removal; but it has never held, and could not reasonably hold, that the excepting clause enables Congress to draw to itself, or to either branch of it, the power to remove or the right to participate in the exercise of that power. To do this would be to go beyond the words and implications of that clause and to infringe the constitutional principle of the separation of govern mental powers. P. 161.

Assuming the power of Congress to regulate removals as incidental to the exercise of its constitutional power to vest appointments of inferior officers in the heads of departments, certainly so long as Congress does not exercise that power, the power of removal must remain where the Constitution places it -- with the President, as part of the executive power, in accordance with the legislative decision of 1789. P. 161.

Whether the action of Congress in removing the necessity for the advice and consent of the Senate, and putting the power of appointment in the President alone, would make his power of removal in such case any more subject to Congressional legislation than before is a question not heretofore decided by this Court and not presented or decided in this case. P. 161.

Congress is only given power to provide for appointments and removals of inferior officers after it has vested, and on condition that it does vest, their appointment in other authority than the President with the Senate’s consent. P. 164.

58 Ct.Cls. 199, affirmed.

APPEAL from a judgment of the Court of Claims rejecting a claim for salary. Appellant’s intestate, Frank S. Myers, was reappointed by the President, by and with the advice and consent of the Senate, as a postmaster of the first class. The Act of July, 1876, § 6, c. 179, 19 Stat. 80, provides that such postmasters shall hold office for four years, unless sooner removed or suspended according to law, and provides that they may be removed by the President "by and with the advice and consent of the Senate." Myers was removed, before the expiration of his term, by an order of the Postmaster General, sanctioned by the President. The removal was not referred to the Senate, either directly or through nomination of a successor, during the four-year period. Judgment of the Court below that Myers could not claim salary for the part of that period following the removal was based on the view that there had been laches in asserting the claim. The appeal was argued and submitted by counsel for the appellant on December 5, 1924. On January 5, 1925, the Court restored the case for reargument. It invited the Honorable George Wharton Pepper, United States Senator from Pennsylvania, to participate as amicus curiae. The reargument occurred on April 13, 14, 1925. In view of the great importance of the matter, the Reporter has deemed it advisable to print, in part, the oral arguments, in addition to summaries of the briefs. [Oral arguments and briefs omitted.]


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Chicago: U.S. Supreme Court, "Syllabus," Myers v. United States, 272 U.S. 52 (1925) in 272 U.S. 52 272 U.S. 53–272 U.S. 106. Original Sources, accessed March 25, 2023,

MLA: U.S. Supreme Court. "Syllabus." Myers v. United States, 272 U.S. 52 (1925), in 272 U.S. 52, pp. 272 U.S. 53–272 U.S. 106. Original Sources. 25 Mar. 2023.

Harvard: U.S. Supreme Court, 'Syllabus' in Myers v. United States, 272 U.S. 52 (1925). cited in 1925, 272 U.S. 52, pp.272 U.S. 53–272 U.S. 106. Original Sources, retrieved 25 March 2023, from