This offers the best explanation of why Congress really has no role in this entire question – and how the Supreme Court has already dealt with the issue of firing Executive Branch appointees in the past.

The contrived controversy over the firing of eight U.S. Attorneys is largely an exercise in imaginary indignation. Congressional Democrats suggest that some of the firings may have been improper and demand to know the reasons for each of them. By what authority they make such demand is not clear, since the Supreme Court has ruled that, with limited exceptions, Congress has no voice in the dismissal of federal officers.

After the Civil War the radical Republicans in Congress sought to limit the power of the executive to dismiss political appointees. A statute passed in 1876 provided that postmasters should be appointed to a term of four years with the advice and consent of the Senate, just as the law provides now for the appointment of U.S. attorneys. However, the 1876 act also provided that a postmaster could not be removed by the president except with the advice and consent of the Senate. In 1920, President Wilson removed a postmaster whose term had not yet been completed. The postmaster sued in the Court of Claims to recover the salary he would have been owed from the day of his dismissal to the end of his term. The Court of Claims ruled against him and he appealed to the Supreme Court.

In 1926, the Supreme Court held that the requirement for Senate approval of a dismissal was unconstitutional. Chief Justice William Howard Taft, writing for the majority, stated that in order for the president to fulfill his constitutional duty, he must be able to discharge federal officers whose performance in office was not in accordance with his desires and that this responsibility could not be shared with Congress. Neither the statute providing for the appointment of U.S. attorneys nor the Supreme Court opinion makes any attempt to define what would constitute proper or improper reasons for dismissal. In fact, nowhere is there any suggestion that the president would need any reason to dismiss a federal officer who is not covered by the Civil Service Act.

If Congress can have no voice in the removal of U.S. attorneys and no reason is required to dismiss them, then by what authority do members of Congress demand to know why the attorneys were fired? Well, they do have subpoena power. However, since none of the documents they demand can possibly relate to any legitimate legislative purpose, it is not clear that the courts would uphold such subpoenas if the president refused to produce the documents.

Now I realize that the Democrats view the Constitution as so flexible that it can mean exactly the opposite of what it clearly says at any given time, but one would think that the demands of fidelity to past Supreme Court precedent – “settled law”, as the Democrats called it during recent confirmation hearings – would require that they not stick their nose into an area that is clearly an Executive branch prerogative. But of course, this isn’t a question of principle – it is a question of creating the appearance of impropriety where none exists, for purely political purposes.

Posted by: Greg at 12:42 PM | No Comments | Add Comment
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