What was the Tenure of Office Act


Also found in: Encyclopedia, Wikipedia.

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 Stanton subsequently relinquished his office, and the Tenure of Office Act, never a popular measure, was repealed in 1887.

Further readings

Hearn, Chester G. 2000. The Impeachment of Andrew Johnson. Jefferson, N.C.: McFarland.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

Want to thank TFD for its existence? Tell a friend about us, add a link to this page, or visit the webmaster's page for free fun content.

Link to this page:

<a href="https://legal-dictionary.thefreedictionary.com/Tenure+of+Office+Act">Tenure of Office Act</a>

Pol'y 667, 746-58 (2003) (detailing the history of President Andrew Johnson's battle with Congress over the constitutionality of the Tenure of Office Act, which restricted the President's ability to remove certain executive officers without the approval of the Senate, and describing Johnson's impeachment and acquittal by a single vote).

In this case, it was not legislation that shaped the process of impeachment, as the independent counsel statute did; it was the legislation the violation of which constituted the principal charge against the president: the Tenure of Office Act restricting Johnson's ability to remove senior officials.


The Constitutionality of the Act was a major point of contention during the trial. Harper’s Weekly discussed the "obscurity of the law" in an April 17, 1869 editorial, "An Unsettling Settlement", which was printed a month after Johnson’s term ended.


Page 2


Harper’s Weekly discussed Republican party loyalty at length as the Impeachment trial was coming to a close, and afterwards when several key Senators had voted for acquittal. George William Curtis agreed that every man had both the right and the obligation to vote his conscience. He counter-attacked Horace Greeley whose influential New York Tribune took a strongly opposite point of view that said Republicans who voted for acquittal should be considered traitors to the party.

What Harper’s Weekly did not discuss in depth was the antipathy that several of the Senators had for Benjamin Wade, who was elected President pro tempore of the Senate on March 4, 1868. In the event of Andrew Johnson’s suspension, resignation or removal from office, Wade would have become President until the next national election in November.

Tenure of Office Act, in U.S. history, measure passed on Mar. 2, 1867, by Congress over the veto of President Andrew Johnson; it forbade the President to remove any federal officeholder appointed by and with the advice and consent of the Senate without the further approval of the Senate. It also provided that members of the President's cabinet should hold office for the full term of the President who appointed them and one month thereafter, subject to removal by the Senate. With this measure the radical Republicans in Congress hoped to assure the continuance in office of Secretary of War Edwin M. Stanton and thus prevent any interference with the military occupation of the South in their Reconstruction plan. In order to bring about a court test of the constitutionality of the act, Johnson dismissed Stanton, but the Supreme Court, intimidated by the radicals, refused to pass on the case. Gen. Ulysses S. Grant, whom Johnson appointed Secretary ad interim, turned the office back to Stanton when the Senate refused to approve his dismissal. Johnson then appointed Gen. Lorenzo Thomas Secretary of War, but Stanton, barricading himself in the department, refused to yield. Johnson's alleged violation of the Tenure of Office Act was the principal charge in the impeachment proceedings against him. When this move failed (May, 1868), Stanton finally gave up. The act, considerably modified in Grant's administration, was in large part repealed in 1887, and in 1926 the Supreme Court declared its principles unconstitutional.

The Columbia Electronic Encyclopedia, 6th ed. Copyright © 2022, Columbia University Press. All rights reserved.

See more Encyclopedia articles on: U.S. History

In order to continue enjoying our site, we ask that you confirm your identity as a human. Thank you very much for your cooperation.

Details

The Tenure of Office Act, passed over the veto of President Andrew Johnson on March 2, 1867, provided that all federal officials whose appointment required Senate confirmation could not be removed without the consent of the Senate. When the Senate was not in session, the Act allowed the President to suspend an official, but if the Senate upon its reconvening refused to concur in the removal, the official must be reinstated in his position. It was not entirely clear whether the Act applied to cabinet officials appointed by a previous president, such as Secretary of War Edwin Stanton, a Lincoln appointee.

In the summer of 1867, with Congress not in session, Andrew Johnson decided the time had finally come to replace Edwin Stanton with a new secretary of war. Stanton had become increasingly at odds with Johnson and the rest of his cabinet, and had been conspiring with Radical Republicans in Congress to thwart Johnson's policies on Reconstruction, which were considered too soft by the Radicals. On August 5, 1867, Johnson sent Stanton the following message: "Public considerations of high character constrain me to say that your resignation as Secretary of War will be accepted." Stanton refused to resign, forcing Johnson to send Stanton a second letter suspending him from office, ordering that he cease all exercise of authority, and transferring power to a new secretary of war, Ulysses S. Grant.

On January 3, 1868, the new Congress met and refused to concur in the removal of Stanton by a vote of 35 to 16. The President, however, refused to accept the Senate's decision, believing the Tenure of Office Act to be an unconstitutional infringement on the power of the executive. Hoping to obtain judicial review of the Act's constitutionality, Johnson on February 21, 1868 appointed General Lorenzo Thomas, Adjutant General of the Army, to the post of secretary of war. Stanton balked at leaving the office he had reoccupied since January. Charles Sumner, one of the Senate's leading Radical Republicans, sent Stanton a one word telegram: "Stick." Impeachment proceedings began within days.

Although both Presidents Ulysses Grant and James Garfield complained strenuously about the Tenure of Office Act, the Act was not repealed until 1887, at the urging of then President Grover Cleveland.

In 1926, in the case of Myers vs. United States, the Supreme Court, in an opinion by Chief Justice Taft, held unconstitutional a law requiring the consent of the Senate for removal of certain non-Cabinet officials.

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 U.S. Senate. The law was enacted 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.[2]

What was the Tenure of Office Act
Tenure of Office Act (1867)Long titleAn act regulating the tenure of certain civil officesEnacted bythe 39th United States CongressLegislative history

  • Introduced in the Senate by George Henry Williams (R-OR) on December 3, 1866
  • Committee consideration by Committee on Retrenchment
  • Passed the Senate on January 10, 1867 (22–11)
  • Passed the House on February 18, 1867 (112–41)
  • Vetoed by President Andrew Johnson on March 2, 1867
  • Overridden by the House of Representatives on March 2, 1867 (138–40)
  • Overridden by the Senate and became law on March 2, 1867 (35–11)

Major amendmentsRepealed on March 3, 1887[1]

Johnson's attempt to remove Secretary of War Edwin Stanton from office without the Senate's approval led to the impeachment of Johnson in early 1868 for violating the act.

The act was significantly amended by Congress on April 5, 1869, under 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.[3]

The notion of the United States Senate advising and consenting the removal of Cabinet members to the same of the appointments were considered during the 1st United States Congress. The vote was tied with 9 in favor and 9 against on July 18, 1789. Vice President John Adams, with his first tie-breaking vote to vote down the bill, defeating it.

In the post-Civil War political environment, President 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.

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.[4]

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.[5] Notwithstanding the vote, on February 22, 1868, President Johnson attempted to replace Stanton with Lorenzo Thomas because he wanted, by such action, to create a case through which to challenge the legitimacy of the Act before the Supreme Court.[6][7] Proceedings began within days to move toward the impeachment of Johnson, the first impeachment of a United States President. After a three-month trial, Johnson narrowly 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 which led up to the impeachment. 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.

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.[8]

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.[9]

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.[9] The Tenure of Office Act was formally repealed in 1887.

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".[3]

  • Tenure of Office Act (1820)
  • Decision of 1789, House of Representatives debate during the 1st Congress as to whether the president the power to remove officers of the United States at will.

  1. ^ "On This Day: April 3, 1886". archive.nytimes.com. Retrieved 2018-07-26.
  2. ^ 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
  3. ^ a b "FindLaw's United States Supreme Court case and opinions".
  4. ^ "The Tenure of Office Act of 1867". Archived from the original on 2006-04-27. Retrieved 2006-04-01.
  5. ^ Wineapple, Brenda (2019). The Impeachers: The Trial of Andrew Johnson and the Dream of a Just Nation. pp. 234–235.
  6. ^ Trefousse, Hans L. (1989). Andrew Johnson: A Biography. New York City: W. W. Norton & Company. p. 306. ISBN 978-0-393-31742-8.
  7. ^ 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.
  8. ^ 271 U.S. 52 (1926).
  9. ^ a b Grover Cleveland. "The Independence of the Executive", lecture delivered at Princeton University, April 1900. Princeton: Princeton University Press (1913), pp. 30 et seq.

Retrieved from "https://en.wikipedia.org/w/index.php?title=Tenure_of_Office_Act_(1867)&oldid=1110654309"