The curious case of the pompous postmaster: Myers v. United States.

• Author: Entin, Jonathan L.
• Position: Symposium: Executive Discretion and the Administrative State

CONTENTS I. FRANK MYERS II. WOODROW WILSON A. Exigent Circumstances B. Democratic Factionalism C. Longstanding Political Philosophy D. Frustration with Congress III. WILLIAM HOWARD TAFT IV. MYERS AS PRECEDENT AND AS SYMBOL Myers v. United States (1) is perhaps the leading Supreme Court case on the law of presidential power. The decision invalidated an 1872 law that required senatorial consent to the removal of local postmasters. Despite the seeming triviality of the office at issue, Myers clearly was a "great case." It was argued twice in the Court, the second time with Senator George Wharton Pepper appearing on behalf of Congress. (2) Chief Justice Taft's expansive opinion was not confined to the postmaster issue but went on to conclude that the Constitution gives the President unfettered power to remove nonjudicial appointees. These officials exercise executive power on behalf of the President, who must have implicit faith in their loyalty and trustworthiness. (3) This reasoning led to the conclusion that the Tenure of Office Act, (4) which precipitated the impeachment of Andrew Johnson and served as the model for the postmaster statute, was also unconstitutional. (5) Taft reached that bigger issue even though the Tenure of Office Act had been repealed almost forty years earlier. (6)

Myers initially was viewed as a sweeping endorsement of executive power, and in recent times its reasoning has been invoked as a vital precedent by adherents of the so-called unitary executive. But Myers has not always been so understood either by the bench or by the academy. The Court soon retreated from Chief Justice Taft's broad language and has not embraced the full implications of the Myers approach despite impassioned urging by judicial and academic advocates of the unitary executive theory. Nearly half a century later, nobody involved in the Watergate tapes case, United States v. Nixon, (7) noticed that the regulation which created the position of special prosecutor was inconsistent with Myers, and even Justice Scalia, the Court's most outspoken proponent of the unitary executive, overlooked the problem in one of his most impassioned dissenting opinions.

So Myers remains an important decision, but there are many perplexing aspects to it. For one thing, it has never been very clear why Frank Myers was removed from his position. Chief Justice Rehnquist has suggested that Myers might have "committed fraud in the course of his official duties" but cited no authority for this suspicion. (8) If Myers had been engaged in illegal or unethical activities, however, the administration almost certainly could have obtained the necessary senatorial consent to his ouster. That raises questions about why President Wilson transformed what appears to have been a minor personnel matter into a constitutional confrontation. In addition, Taft's majority opinion in Myers went well beyond what was necessary to resolve the case and ignored the position advanced by the solicitor general in support of Wilson's action. (9) The traditional jurisprudential preference for narrow decisions makes the breadth of the Myers opinion something of an anomaly that is worthy of explanation. Finally, perceptions of the Myers ruling have fluctuated over the years, suggesting the need to put the case into broader context.

This Article seeks to provide at least tentative answers to some of these questions. Part I outlines the facts leading to the lawsuit. Then Part II considers several possible explanations for why the Wilson administration might have forced the constitutional issue. Next, Part III examines Taft's position both as Chief Justice and as President in order to assess the widespread suggestion that his experience in both offices prompted him to write so expansively. Finally, Part IV explores the changing view of Myers both as a precedent and as a symbol of presidential power.

1. FRANK MYERS

   President Wilson appointed Frank Myers as postmaster of Portland, Oregon, for a four-year term in April 1913. (10) Myers, then thirty-seven years old, had been active in Democratic politics in the state, most recently as an aide to U.S. Senator Harry Lane. Lane, the grandson of Oregon's first territorial governor and a Columbia-educated physician, served as superintendent of the state mental hospital, held leadership positions in the medical profession, sat on the state board of health, and in 1905 was elected to the first of his two terms as a reformist mayor of Portland. (11) Myers managed Lane's 1912 campaign for the Senate and went to Washington to serve as his personal secretary before becoming postmaster. (12)

   His appointment was greeted enthusiastically. Local newspapers ran prominent stories marking the new man's arrival and noting his commitment to obtaining larger quarters for the overcrowded local post office. (13) Things seem to have gone uneventfully for Myers during his first term. He remained involved in politics, especially in connection with federal patronage matters. (14) Except for a minor dispute over the delayed seating of Oregon's newly elected member of the Democratic National Committee in 1915, Myers generally managed to avoid controversy. (15) Wilson nominated Myers for a second four-year term in July 1917, and the Senate confirmed two days later. (16)

   Myers's second term was much more contentious than his first. In the spring of 1919 he became involved in yet another crisis over the state's national committeeman. This time the split was more serious, with the state party's executive deadlocked between factions loyal to President Wilson and to Senator George Chamberlain, who had been sharply critical of Wilson's military preparedness policies. (17) Myers weighed in strongly on the Wilson loyalist side and was widely rumored to be contemplating a primary run against Chamberlain the following year. (18) The Chamberlain faction hit back by excluding Myers from a private dinner held for Secretary of War Newton D. Baker. (19)

   Meanwhile, Myers got into a nasty public spat with Congressman Clifton McArthur, a Portland Republican who took to the House floor to denounce Myers as a "liar" for telling an interviewer that the congressman had gone to Postmaster General Albert S. Burleson with a "crooked scheme." Myers denied making the statements and claimed that the candidates he had supported against McArthur had never "been guilty of selling the remnant of a tubercular herd of cattle to Multnomah county." (20)

   Later in the year, Myers asked the Post Office Department to investigate his assistant, Harry Durand. The reason for the investigation was not clear, although press reports suggested that Myers suspected Durand of harboring Republican sympathies and of personal disloyalty. The postal inspectors ultimately gave Durand a clean bill of health but then turned their attention to Myers. (21) He was said to run the Portland post office in a high-handed, dictatorial, and manipulative fashion that alienated workers, customers, and all but a handful of local Democratic activists. (22)

   Within days of the first newspaper accounts of the investigation, Myers found himself the target of additional criticism. Portland Mayor George L. Baker, a Republican and staunch war hawk, (23) presented public charges implying that Myers was not fully supportive of U.S. involvement in the recently ended First World War. A number of returning servicemen claimed that the postmaster had refused to give them their old jobs, and the mayor took up their cause. (24) Myers responded in his typically diplomatic fashion, describing Baker as "four flushing" and "weak minded" while strenuously denying the charges. (25) Soon the local American Legion began investigating the postmaster's alleged mistreatment of World War I veterans; within a month, Myers backed down and restored the returnees to their prewar positions. (26) Although this flap was technically separate from the Post Office Department's investigation, it certainly contributed to public perception that Myers would have to go. (27)

   Ultimately the Post Office Department demanded that Myers resign effective January 31, 1920. The letter demanding his resignation explained that the previous year's investigation had sought to "eliminate the antagonism which existed in the Portland office and bring about needed cooperation" but that this had not happened, leaving Washington no alternative but to remove both Myers and Durand. (28) Myers did not go quietly, denying that he could be removed without the Senate's consent and demanding a hearing on the charges against him. (29) Nothing happened during the remainder of the Wilson administration, although he had a brief but unsuccessful meeting with President Harding's Postmaster General, Will Hays, in April 1921. (30) Several days later, Myers filed suit in the U.S. Court of Claims for the salary he would have earned had he remained in office for the balance of his term. (31) He lost there in 1923. (32) Myers died in December 1924, but his widow continued the litigation in the name of his estate. (33) And, as noted at the outset, the Supreme Court upheld the removal in 1926.

2. WOODROW WILSON

   In removing Myers as Portland's postmaster, the Wilson administration ignored the applicable statute, which had been on the books for about half a century. (34) That statute provided that local postmasters like Myers "shall be appointed and may be removed by the President by and with the advice and consent of the Senate." (35) A chief executive who wanted to remove a postmaster simply sent the name of a new nominee to the Senate; confirmation of the successor amounted to consent to the removal of the incumbent. President Wilson surely could have chosen that course to get rid of Myers, but, for whatever reason, he decided to defy the statute and risk a constitutional confrontation. In this Part, I will consider several possible explanations for bypassing the statute.

   1. Exigent...