Tenure of Office Act (1867)
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|Long title||An act regulating the tenure of certain civil offices|
|Enacted by||the 39th United States Congress|
|Repealed on March 3, 1887|
The Tenure of Office Act was a United States federal law (in force from 1867 to 1887) that was intended to restrict the power of the president to remove certain office-holders without the approval of the Senate. The law was enacted on March 2, 1867, over the veto of President Andrew Johnson. It purported to deny the president the power to remove any executive officer who had been appointed by the president with the advice and consent of the Senate, unless the Senate approved the removal during the next full session of Congress.
The act was significantly amended on April 5, 1869, by Congress with President Ulysses S. Grant. Congress repealed the act in its entirety in 1887, exactly 20 years after the law was enacted. While evaluating the constitutionality of a similar law in Myers v. United States (1926), the Supreme Court stated that the Tenure of Office Act was likely invalid.
In the post-Civil War political environment, President Andrew Johnson, a Democrat who had served as Abraham Lincoln's second vice president, endorsed the quick re-admission of the Southern secessionist states. The two-thirds Republican majorities of both houses of Congress, however, passed laws over Johnson's vetoes, establishing a series of five military districts overseeing newly created state governments. This "Congressional Reconstruction" was designed to create local civil rights laws to protect newly freed slaves; to protect and patrol the area; to ensure the secessionist states would show some good faith before being readmitted; to ensure Republican control of the states; and, arguably, to inflict some punishment on the secessionists. States would be readmitted gradually.
Overpowered politically, Johnson could apply the sole check to the Congressional Reconstruction plan of his control (as commander-in-chief) of the military, which would be the primary institution enforcing the plan's provisions. Even Johnson's control of the military was, however, inhibited by the fact that his Secretary of War, Edwin Stanton, was a staunch Radical Republican who supported Congressional Reconstruction in full. This further set Johnson against the Republican-controlled Congress, with Johnson wanting to remove Stanton from office and Congress wanting to keep him in place.
Stanton and impeachment
The Tenure of Office Act restricted the power of the President to suspend an officer while the Senate was not in session. (At that time, Congress sat during a relatively small portion of the year.) If, when the Senate reconvened, it declined to ratify the removal, the President would be required to reinstate the official.
In August 1867, with the Senate out of session, Johnson made his move against Stanton, suspending him pending the next session of the Senate. When the Senate convened on January 13, 1868, it refused, however, to ratify the removal by a vote of 35–6. Notwithstanding the vote, President Johnson appointed General Ulysses S. Grant the new Secretary of War because he wanted, by such action, to create a case through which to challenge the legitimacy of the Act before the Supreme Court. Proceedings began within days to move toward the impeachment of United States President Andrew Johnson, the first impeachment of a United States President. After a three-month trial, Johnson avoided removal from office by the Senate by a single vote. Stanton resigned in May 1868.
It was very unclear whether Johnson had violated the Tenure of Office Act. The act's phrasing was murky, and it was not clear whether his removal of Stanton (a holdover from the Lincoln administration whom Johnson had not appointed) violated the Act. While the Act, by its terms, applied to current office holders, it also limited the protection offered to Cabinet members to one month after a new president took office.
The Confederate Constitution was more explicit on the removal of executive offices of the federal government. It provided that “[t]he principal officer in each of the Executive Departments [i.e. members of the President’s Cabinet], and all persons connected with the diplomatic service, may be removed from office at the pleasure of the President.” All other civil officers of the Executive Department could be removed only “when their services are unnecessary, or for dishonesty, incapacity, inefficiency, misconduct, or neglect of duty, and when so removed, the removal [was required to] be reported to the Senate, together with the reasons therefor.”
Given the disagreement over whether the Tenure of Office Act violated the United States Constitution, the proper course of action would have been not to impeach the President, but for Stanton to sue for wrongful termination and back pay, as happened in the subsequent case of Myers v. United States
The act was amended on April 5, 1869, one month and one day after Republican President Ulysses S. Grant assumed the presidency. The revisions grew out of an attempt to completely repeal the 1867 act. The measure to repeal passed the House of Representatives with only 16 negative votes but failed in the Senate. The new provisions were significantly less onerous, allowing the President to suspend office holders "in his discretion" and designate replacements while the Senate was in recess, subject only to confirmation of the replacements at the next session. The President no longer had to report his reasons for suspension to the Senate, and the Senate could no longer force reinstatement of suspended office holders.
Although Grant, in his first message to Congress, in December 1869, urged the repeal of even the revised act, it did not cause further problems until the election of Democrat Grover Cleveland in 1884. Under the spoils system it had long been accepted practice for the administration of a new party to replace current office holders with party faithful. Cleveland, a supporter of a civil service system, had promised, however, to avoid wholesale replacements, vowing to replace incumbents only for cause. When he suspended several hundred office holders for cause, Senate committees requested information from cabinet members regarding the reasons for the suspensions, which Cleveland refused to provide. If he had simply said that the incumbents were being replaced for political reasons, the Senate would have complied, but Cleveland would not do so. When, in early 1886, the Senate as a whole demanded information regarding the conduct of the suspended U.S. Attorney for southern Alabama, Cleveland sent a message to Congress explaining his position opposing impingement of independence of the executive. Cleveland's replacement nominee was eventually confirmed when it was discovered that the suspended incumbent's term had expired in the meantime anyway. The Tenure of Office Act was finally repealed in 1887, 20 years after the law was enacted.
In 1926, a similar law (though not dealing with Cabinet secretaries) was ruled unconstitutional by the United States Supreme Court in the case of Myers v. United States, which affirmed the ability of the President to remove a Postmaster without Congressional approval. In reaching that decision, the Supreme Court stated in its majority opinion (though in dicta), "that the Tenure of Office Act of 1867, insofar as it attempted to prevent the President from removing executive officers who had been appointed by him by and with the advice and consent of the Senate, was invalid".
- "On This Day: April 3, 1886". archive.nytimes.com. Retrieved 2018-07-26.
- Tenure of Office Act, March 2, 1867, 14 Stat. 430, ch. 154; https://babel.hathitrust.org/cgi/pt?id=mdp.35112200623595;view=1up;seq=474
- "FindLaw's United States Supreme Court case and opinions".
- Brenda Wineapple, The Impeachers: The Trial of Andrew Johnson and the Dream of a Just Nation, pp. 234-235 (2019)
- Smith, Gene (1977). High Crimes and Misdemeanors : The Impeachment and Trial of Andrew Johnson. New York: William Morrow. p. 221. ISBN 0-688-03072-6.
- Confederate Constitution, Art. II, § 2, cl. 3
- Confederate Constitution, Art. II, § 2, cl. 3
- 271 U.S. 52 (1926).
- Grover Cleveland. "The Independence of the Executive", lecture delivered at Princeton University, April 1900. Princeton: Princeton University Press (1913), pp. 30 et seq.