Tension in the Unitary Executive: How Taft Constructed the Epochal Opinion of Myers v. United States

Abstract

Tension in the Unitary Executive: How Taft Constructed the Epochal Opinion of Myers v. United States ROBERT POST William H. Taft is the only person ever to have served as both president of the United States and as chief justice of the Supreme Court of the United States. That unique confluence of roles is evident in Myers v. United States,1 an “epoch-making”2 and “landmark”3 case that Taft considered “one of the important opinions I have ever written.”4 The precise question in Myers was “whether under the Constitution the President has the exclusive power of removing executive officers of the United States whom he has appointed by and with the advice and consent of the Senate.”5 Myers was the first decision in the history of the nation to invalidate a congressional statute on the grounds that it violated an inherent Article II power of the president. It was as if fate itself had reserved Myers until Taft could take his seat at the center of the Court. Frank Myers, a thirty-seven-year-old Democratic activist, was appointed to a four-year term as the first-class postmaster of Portland, Oregon, in April 1913.6 After an uneventful first term, Myers was reappointed in July 1917. Myers’ tenure soon became engulfed in controversy, and in January 1920 Wilson sought to fire him.7 At the time, the removal of first-class postmasters was governed by an 1876 statute providing that such postmasters “shall be appointed and may be removed by the President by and with the advice and consent of the Senate.”8 Senatorial consent was easily obtained by the nomination and approval of a successor postmaster. But for reasons that remain obscure, Wilson refused to nominate a successor or in any other way to seek the consent of the Senate.9 Myers therefore sued the government for the remainder of his salary, some $8,838.72. He lost in the Court of Claims in 1923 on the ground of laches,10 168 JOURNAL OF SUPREME COURT HISTORY Frank S. Myers, Postmaster. In 1920, President Woodrow Wilson removed U.S. Postmaster Frank S. Myers of Portland, Oregon. Myers (pictured) filed suit in the Court of Claims seeking to recover his salary, claiming that his removal violated an 1876 law requiring that the president obtain Senate consent for appointing or removing postmasters. which was a transparent attempt to evade the underlying constitutional issue whether the president could remove Myers despite contrary congressional legislation. Myers died in December 1924, “but his widow continued the litigation in the name of his estate.”11 The case was first argued on December 5, 1924.12 James M. Beck appeared for the government as Solicitor General, but no one argued Myers’ side of the case.13 Beck effectively conceded that the Court of Claims had incorrectly decided the question of laches. In his brief, Beck had written that he “would be glad to accept” the Court’s judgment “and thus spare the court the necessity of deciding one of the most important constitutional questions which can arise under our form of Government,” but “candor compels me to add ... that the dispo­ sition, which the Court of Claims made ofthe case in this respect, is not entirely convincing to me.”14 Beck added, “I do not mean to confess error, for the action of the very learned and able Court of Claims is entitled to very great respect and the Government should not waive the benefit of this decision in its favor.”15 When the case was re-argued for a second time, however, Beck would be far more explicit: I agree with opposing counsel that, if this statute is unconstitutional, the appellant has a good cause of action... . In this case, 1 am frank to say, I can find no evidence of any waiver or acquiescence. I do not know what more Mr. Myers could have done in asserting his rights. The pertinacity with which he asserted his title until his commission had expired is worthy of the legendary boy on the burning deck. He stood by his guns in respect to the alleged unlawfulness of his dismissal and awaited an...