Tenure of Office Act

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This statute resulted from a fear on the part of congressional Republicans that President Andrew Johnson, in the course of a bitter dispute over Reconstruction policy, would make sweeping removals of federal officeholders and replace them with Democrats. The law sought to protect officials appointed with Senate consent “until a successor shall have been in like manner appointed and duly qualified.” Cabinet officers were to remain in place “for and during the term of the President by whom they may have been appointed, and for one month thereafter.”

The latter provision appeared to protect Secretary of War Edwin M. Stanton, who had allied himself with the congressional position on Reconstruction. Since the U.S. Army was the chief enforcement agency for federal policy in the South, control of the army, through the War Department, was vital to both Johnson and Congress. Johnson vetoed the measure as unconstitutional; Congress overrode the veto on 2 March 1867.

In February 1868, Johnson appeared to violate the act by removing Stanton. The House of Representatives impeached Johnson, citing his violation of the Tenure of Office Act as one reason. At the trial, the president's defense team raised serious questions about the statute's constitutionality. They also raised doubts that it even applied to Stanton, who had been appointed not by Johnson but by Abraham Lincoln. These doubts, together with other considerations, caused enough senators to vote not guilty that Johnson escaped conviction by a single vote. Efforts to repeal the law began in 1869 and succeeded in 1887. In 1926, the Supreme Court, reviewing the presidential removal power in Myers v. United States, held unconstitutional the Tenure of Office Act and an 1876 successor.

[See also Commander in Chief, President as.]

Bibliography

• James E. Sefton, The United States Army and Reconstruction, 1865–1877, 1967.
• Hans L. Trefousse, Andrew Johnson: A Biography, 1989

The Constitution gives the President the power to make all nominations of executive branch officials with the advice and consent of the Senate. But the Constitution says nothing about how those officials might be removed, other than by impeachment. After the Civil War, a bitter clash took place between radical Republicans in Congress and President Andrew Johnson over Reconstruction of the South. To prevent Johnson from removing hard–line supporters of Reconstruction from office, Congress passed the Tenure of Office Act in 1867. This act required the President to seek the Senate's consent before removing any cabinet officer or other high–ranking official. Despite its passage over his veto, Johnson insisted that the Tenure of Office Act was unconstitutional. In 1868 he ignored the act and fired Secretary of War Edwin Stanton without consulting the Senate. This was the event that triggered Congress's unsuccessful attempt to remove Johnson from the Presidency. In the 1926 case of Myers v. United States, the Supreme Court finally declared the Tenure of Office Act unconstitutional. Since then, Presidents have been free to fire or ask for the resignation of any of their appointees in the executive branch. But this removal power does not extend to the independent regulatory commissions (such as the Federal Trade Commission and the Securities and Exchange Commission), whose members serve limited terms and function independently of both the executive and legislative branches. Nor can Presidents remove Supreme Court justices and other federal judges, who serve lifetime appointments, subject only to impeachment.

See also Removal power

Tenure of Office Act, passed by Congress in 1867 over President Andrew Johnson's veto, was designed to restrict greatly Johnson's appointing and removing power. When Johnson attempted to remove Secretary of War Edwin M. Stanton, the Radical Republican Congress proceeded with its long-laid plans for the impeachment and trial of the president. As Stanton was not a Johnson appointee, the act could not be applied to him. Passed during, and as part of, the struggle between Johnson and Congress over Reconstruction, sections of the act were repealed early in Ulysses S. Grant's first administration; the rest of the act was repealed 5 March 1887.

Bibliography

Benedict, Michael Les. A Compromise of Principle: Congressional Republicans and Reconstruction, 1863–1869. New York: Norton, 1974.

Kutler, Stanley I. Judicial Power and Reconstruction. Chicago: University of Chicago Press, 1968.

McKittrick, Eric L. Andrew Johnson and Reconstruction. Chicago: University of Chicago Press, 1960.

Thomas, Benjamin P., and Harold M. Hyman. Stanton: The Life and Times of Lincoln's Secretary of War. New York: Knopf, 1962.

The Tenure of Office Act was one of several examples of Congress assuming power over the presidency during the administration of Andrew Johnson. Passed in 1867 by Congress over Johnson's veto, the Tenure of Office Act concerned federal officials appointed by the President that required confirmation by the Senate. Under the Tenure of Office Act, such officials could not be removed from their position by the president without the consent of the Senate. If the Senate was not in session, the president could suspend an official, but once the Senate reconvened it had to approve the removal or the official would have to be reinstated by the president.

The Tenure of Office Act was tested by Johnson during the summer of 1867, when Congress was not in session. Johnson's secretary of war, Edwin Stanton, was a confidante to Republicans in Congress who wanted a harsher Reconstruction program toward the South following the Civil War than what Johnson was pursuing. The congressional group is known historically as the Radical Republicans. Johnson wanted to remove Stanton, and he found a potential loophole in the Tenure of Office Act: Stanton was an appointee of Abraham Lincoln's and had remained in the cabinet following Lincoln's death and Johnson's succession to the presidency.

In August 1867, Johnson sent Stanton a letter that stated, "Public considerations of high character constrain me to say that your resignation as Secretary of War will be accepted." When Stanton refused to resign (replying to Johnson that "public considerations of a high character... constrain me not to resign"), Johnson was forced to send Stanton a second letter announcing he had been suspended from office, ordering him to cease all exercise of authority, and transferring his power to Ulysses S. Grant as Johnson's new secretary of war. Five months later, in January 3, 1868, the new Congress convened and refused to approve Stanton's removal by a vote of thirty-five to sixteen. Johnson, in turn, refused to accept the Senate's decision and called the Tenure of Office Act an unconstitutional infringement on the power of the executive.

Impeachment hearings against Johnson began in a few days. Meanwhile, Stanton remained in his office and had a guard posted to protect him and to ensure department records were not seized. Stanton remained in the War Department building for several weeks, until the outcome of Johnson's impeachment trial in the Senate.

The Tenure of Office Act was repealed by Congress in 1887 under pressure by President Grover Cleveland.

The assassination of President Abraham Lincoln on April 14, 1865, left the post-Civil War United States in the hands of his ineffectual and unpopular successor, Andrew Johnson. It became Johnson's responsibility to determine a reconstruction policy, and he incurred the anger of the Radical Republicans in Congress when he chose a moderate treatment of the rebellious South.

Congress sought to diminish Johnson's authority to select or remove officials from office, and the Radical Republicans particularly wanted to protect Lincoln's secretary of war, Edwin M. Stanton. Stanton, a valuable member of the existing cabinet, supported the Radicals' Reconstruction policies and openly opposed Johnson. On March 2, 1867, Congress enacted the Tenure of Office Act (14 Stat. 430), which stated that a U.S. president could not remove any official originally appointed with senatorial consent without again obtaining the approval of the Senate.

Andrew Johnson vetoed the measure and challenged its effectiveness when he removed the dissident Stanton from office. Stanton refused to leave, and the House of Representatives invoked the new act to initiate impeachment proceedings against Johnson in 1868. The president was acquitted, however, when the Senate failed by one vote to convict him. Stanton subsequently relinquished his office, and the Tenure of Office Act, never a popular measure, was repealed in 1887.

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