How is the 1867 Tenure of Office Act related to Marbury v. Madison?

Answer 1

The connection between the 1867 Tenure of Office Act and the earlier Supreme Court case, Marbury v. Madison, 5 US 137 (1803), as well as the later cases, Myers v. United States,272 US 52 (1926) and Humphrey's Executor v. United States,295 US 602 (1935), is one of the Constitutional conflict between the Separation of Powers and the concept of Checks and Balances. Political conflicts arise in situations where the framers of the Constitution, whether by intent or lack of foresight, failed to explicitly assign specific rights or powers to a named branch of government.

The question arising from both the Tenure of Office Act and the cited cases is whether the President has the power to dismiss a cabinet member or lower federal employees without the "advice and consent" of the Senate, and whether having such authority could give rise to inappropriate and arbitrary abuse of power.

Background: The Decision of 1789

The Constitution broadly defined the three branches of Government: the Executive (President), Legislative (Congress), and Judicial (Supreme Court), and partially enumerated the powers granted to each, but left the development of lower executive positions to Congress.

In 1789, Congress anticipated the need for a Department of Foreign Affairs to handle relations with other countries, and a Department of War to manage the military (should diplomatic relations fail). They created two bills establishing these Departments, headed by cabinet members, the Secretary of Foreign Affairs and the Secretary of War, respectively. These positions were to fall under the control of the Executive branch of government.

Congress was concerned, however, about the danger of placing too much control in the hands of the President, so, while the first version of the bills granted the President the power to appoint men to these positions, with the "advice and consent" of the Senate, it had no provision for removing people from office once they were confirmed.

After much debate, the bills were amended to give the President an implied power of removal without explicitly stating such. In Section 2 of each bill, Congress assigned a Chief Clerk position below the Department Secretaries, "who will take the place of the principal (Secretary) when said principal shall for any cause, be removed by the President..."

Both bills passed the House on June 24, 1789, by a vote of 29-22. The bills cleared the Senate on July 18, 1789, and were signed into law by President Washington on July 27, 1789.

Another law was passed in September 1789 providing that the Executive branch dominated the Department of State (which had been called the Department of Foreign Affairs just a few months earlier), which would be run by the Secretary of State.

This arrangement worked without problems or challenges for about 70 years.

Tenure of Office Act 1867

Andrew Johnson assumed the Presidency following the assassination of President Lincoln, in April 1865. Before becoming Lincoln's Vice-President, Johnson had been a US Senator from east Tennessee, one of the Confederate states to secede from the Union during the Civil War. Because Johnson was a strong Union supporter, he was the only Southern Senator who refused to resign from Congress in solidarity with the Confederacy. President Johnson was in office during early Reconstruction, a period when federal troops occupied the southern states in an effort to ensure integration and institute new policies designed to expand African-Americans' civil rights. Johnson was sympathetic toward the former Confederacy and was eager to reintegrate the states and withdraw federal troops. He was not particularly supportive of African-Americans, and vetoed a number of civil rights bills, which put him at odds with the Republicans, and even more so with a group that referred to themselves as the Radical Republicans, who were determined to change the government's direction. The Radical Republicans gained control of Congress in the 1866 elections. They immediately set to work checking Johnson's power. One piece of legislation in particular, the Tenure of Office Act of 1867, revoked the President's power to terminate the office of anyone who had been appointed with the "advice and consent" of the Senate. The bill infuriated Johnson, who immediately vetoed it. The Radical Republicans held more than enough seats to override the vetoes by the required 2/3 vote, making the Tenure of Office Act law. The new party also began a campaign of "Congressional Reconstruction," crafting legislation and passing laws to enable the military to enforce civil rights legislation. Unfortunately, Congressional sessions were relatively short in those days, leaving the President somewhat unchecked during long recesses. In August 1867, with Congress on break, Johnson attempted to regain control of the military by suspending Secretary of War Edwin Stanton. Stanton refused to step down, instead barricading himself in his office, where he remained camped (even cooking meals inside) until the Senate reconvened on January 3, 1868. As expected, the Senate refused to ratify the President's decision by a vote of 35-16. Johnson ignored the Senate vote and attempted to appoint a new Secretary of War to replace Stanton. In response, the House immediately moved to impeach Johnson for "high crimes and misdemeanors." Voting fell along party lines, 128-47, in favor of the impeachment. The House of Representatives charged President Johnson with nine articles of impeachment - all but two based on his alleged* violation of the Tenure of Office Act. On March 4, 1868, the House impeached Johnson, then delivered the documentation to the Senate. The Chief Justice of the United States, Salmon Chase, presided over the Senate hearing convened on March 5. Johnson's two-month trial concluded on May 6, 1868, at which time the Senate began deliberations. On May 16, the Senate ballot of 35-19 fell one vote short of the 2/3 supermajority needed for conviction. Johnson remained in office until the end of his term, in March 1869. The Tenure of Office Act was repealed in 1887.

Myers v. United States, 272 US 52 (1926) In 1920, on the advice of the Postmaster General, President Wilson terminated the employment of Postmaster First-Class Frank Myers, whom he had appointed to the Portland, Oregon postal region in 1917. Albert Burleson, Wilson's Postmaster General, believed Myers had committed fraud in office. When Myers refused to resign, Burleson, acting under instructions from the President, fired him. At the time, a Postmaster appointment was a four-year term of office, but Myers was removed after three years on the job. Myers claimed he wasn't given notice of his release, and petitioned both the President and Senate for relief. Not receiving a satisfactory response, he protested to the Post Office Department. When no assistance was forthcoming, Myers filed suit in federal court for the $8,838.71 in pay he would have earned had he been allowed to complete his contract. One of Myers' arguments asserted that the President acted in violation of the Postal Laws & Regulations, Title IV, Chapter 15, § 393 that stated: "Appointment and Termination of Office of Postmasters of the first-, second- and third-classes shall be appointed and may be removed by the President, by and with the advice and consent of the Senate, and shall hold their offices for four years unless sooner removed or suspended according to law;" Myers was removed, before the expiration of his term, by an order of the Postmaster General, sanctioned by the President. The action was not referred to Congress at any point during the four-year period. Chief Justice Taft, delivering the opinion of the Court, argued the Constitution supported the President's actions: "The relevant parts of Article II of the Constitution are as follows: "Section 1. The executive Power shall be vested in a President of the United States of America." "Section 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments upon any subject relating to the duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." "He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur, and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States whose Appointments are not herein otherwise provided for, and which shall be established

by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.""The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate by granting Commissions which shall expire at the End of their next Session.""Section 3. He shall from time to time give to the Congress information of the State of the Union and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses or either of them, and in case of disagreement between them with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States." "Section 4. The President, Vice President and all civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors." Section 1 of Article III, provides: "The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior Courts, shall hold their offices during good behavior. . . ." "The question where the power of removal of executive officers appointed by the President by and with the advice and consent of the Senate was vested was presented early in the first session of the First Congress. There is no express provision respecting removals in the Constitution, except as Section 4 of Article II, above quoted, provides for removal from office by impeachment. The subject was not discussed in the Constitutional Convention." He further argued that the "Decision of 1789," which had been made by members of the first Congress who understood the framers' intent was controlling [this is an Originalist position]. The 1867 Tenure of Office act had been unconstitutional, as was the law cited from the Postal Laws & Regulations manual. Although the Constitution didn't explicitly assign this right, the President, as Chief Executive, had the power to appoint subordinates to help with executing the duties of his Office. Additionally, the Constitution had placed no express limitations on the President's power regarding removing members of the Executive branch. Congress violated the notion of Separate Powers. In dissent, Justices Louis Brandeis, Oliver Wendell Holmes, Jr., and James McReynolds, countered that Congress had the Constitutional authority to appoint and remove "inferior officers" without Presidential input. Congress had created the office of postmaster, and should have authority both to appoint and remove people from this position.

Marbury v. Madison, 5 US 137 (1803) In a separate dissent, Justice Brandeis cited Marbury v. Madison, (1803), the case that had confirmed the power of the Supreme Court in the process of "judicial review" (the right and obligation to analyze acts of legislation for constitutionality and to nullify unconstitutional laws) and the role of the judiciary. The Marbury case assumed that the President, acting without the consent of the Senate, lacked the power to remove an "inferior officer" appointed for a fixed term with the consent of the Senate. (If the Senate is part of the affirmation process, it shouldn't be excluded from the removal process). Brandeis warned that one of the obligations of Congress is to protect lower federal workers from the arbitrary use of power. In Marbury, Chief Justice Marshall's opinion was that a Justice of the Peace was not removable by the President because there is a distinction between members of the Executive branch who, directly or indirectly, aid the President, and someone whose work is incidental to the Office. Although Brandeis' dissent did not sway the majority in Myers, his reasoning ultimately carried the decision in Humphrey's Executor v. United States, 295 US 602 (1935), in which the President's power over "inferior officers" not under his direct control was revoked.

For more information on Marbury v. Madison, see Related Links, below.