The provision permitting the President to suspend only on certain
specified grounds was so changed as to allow him to make such
suspensions “in his discretion.” The requirements that the President
should report to the Senate “the evidence and reasons for his action in
the case,” and making the advice and consent of the Senate necessary
to the removal of a suspended officer, were entirely eliminated; and
in lieu of the provision in the law of 1867 that “if the Senate shall
refuse to concur in such suspension, such officer so suspended shall
forthwith resume the functions of his office,” the law of 1869, after
requiring the President to send to the Senate nominations to fill the
place of officers who had been “in his discretion” suspended, declared
“that if the Senate, during such session, shall refuse to advise and
consent to an appointment in the place of any suspended officer,”--that
is, shall refuse to confirm the person appointed by the President in
place of the officer suspended,--not that “such officer so suspended
shall resume the functions of his office,” but that “then, and not
otherwise, the President shall nominate another person as soon as
practicable to said session of the Senate for said office.”
It seems to me that the gist of the whole matter is contained in a
comparison of these two provisions. Under the law of 1867 the incumbent
is only conditionally suspended, still having the right to resume his
office in case the Senate refuses to concur in the suspension; but
under the law of 1869 the Senate had no concern with the suspension
of the incumbent, nor with the discretion vested in the President in
reference thereto by the express language of the statute; and the
suspended incumbent was beyond official resuscitation. Instead of the
least intimation that in any event he might “resume the functions of
his office,” as provided in the law of 1867, it is especially declared
that in case the Senate shall refuse to advise and consent to the
appointment of the particular person nominated by the President in
place of the suspended official, he shall nominate another person
to the Senate for such office. Thus the party suspended seems to
be eliminated from consideration, the Senate is relegated to its
constitutional rights of confirming or rejecting nominations as it sees
fit, and the President is reinstated in his undoubted constitutional
power of removal through the form of suspension.
Public-domain text, read in full here on John Shaqi.
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