Ex parte Schaumburg

1 Hay. & Haz. 249, 1846 U.S. App. LEXIS 611

• Court: Court of Appeals for the D.C. Circuit
• Decided: December 31, 1846
• Status: Published

Opinion

On the above application the Court made the following decision:

The application • in this ease is for a rule to show cause why a mandamus should not issue, &c., to restore Lieutenant Schaumburg to the service and the Army Register as First Lieutenant of Dragoons, from which official Army Register President Polk ordered the name of James W. Schaumburg, Esq., to be erased, as having been irregularly printed there, but without reproach to Mr. Schaumburg.

We are perfectly satisfied that the rule ought not to be granted. We think the subject of the petition is one which the Constitution has confided exclusively to the Executive discretionary power, and that it is not for this Court to inquire into the grounds or reasons of the President’s action in the case.

The appointment was made by the President and confirmed by the Senate. The commission was during pleasure. Whose pleasure ? That of the appointing power, no doubt; and as incident to the power of appointing in such cases, is the power of removal.

In Ex parte Duncan N. Honer, Judge Story, in delivering the opinion of the Court, says: “ In the absence of all constitutional provision or statutory regulation, it would seem to be sound and necessary rule to consider the power of removal as incident to the power of appointment; and it has been settled that in all such cases, although the officer was appointed by the President and Senate, the power of such removal is vested in the President alone.