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“The Bearing of Myers v. United States upon the Independence of Federal Administrative Tribunals”—A Criticism

Published online by Cambridge University Press:  01 August 2014

Extract

In a recent issue of the Review, Professor James Hart, of Johns Hopkins University, has advocated a limitation upon the doctrine announced in the Myers case so that Congress may prescribe the terms of office of the members of the various quasi-judicial administrative tribunals, and incidentally that of the Comptroller-General.

The present writer's views on the status of the Comptroller-General are expressed elsewhere. He also dissents from Professor Hart's views on the expediency of granting to the various administrative tribunals any different terms of office from those which the Chief Justice indicated in the Myers case that they already have. This dissent is not a little supported by the practical suggestion of Dr. Hart. He indicates that “constitutional mores” are alone not enough to regulate the President's actions in exercising his power to remove, but that a definite term and formula should be prescribed and “constitutional mores” then depended upon to keep the President within the bounds of the formula. The limited experience of the present writer indicates that it is easier to satisfy a formula which is presumed to prescribe justice than to satisfy the dictates of justice on the facts of each case.

Expediency, however, is a matter of opinion. One who attempts to criticize the logic and technique of another must accept the other's views of expediency.

Type
American Government and Politics
Copyright
Copyright © American Political Science Association 1930

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References

1 August, 1929, p. 657.

2 272 U.S. 52. The opinion says that Congress cannot limit the President's power to remove the members of the quasi-judicial administrative tribunals.

3 23 Illinois Law Rev. 556.

4 Pp. 658-9.

5 P. 671.

6 See his footnote 7.

7 See Cardozo, Nature of the Judicial Process.

8 See Thach, Creation of the Presidency, especially Ch. III and the first paragraph of Ch. IV.

9 P. 666.

10 Politics (Jowett's trans.), Book IV., Ch. XIV; (Welden's trans.), Book VI., Ch. XIV.

11 Pp. 667-8.

12 Pp. 662, 670.

13 In connection with this subject, it may be added that the most scholarly work yet written on the presidency has been singularly neglected by the numerous commentators on the Myers decision. Professor Thach's Creation of the Presidency has the advantage of having been written by a real historical scholar and an excellent political scientist ante litam motam.

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