A generation after Andrew Jackson’s conflict with the Whig Party-controlled Senate over the firing of Secretary Duane, the issue of the President’s power to fire subordinates at will flamed up once more, in a clash between President Andrew Johnson and the post-Civil War Congress. Johnson was vice-president when Abraham Lincoln was assassinated. He was a pro-Union Southerner, a Democrat, and, as Senator from Tennessee, the only Southern Senator to remain loyal to the Union. He was chosen by Lincoln to be his running mate in 1864 to siphon votes from the Democratic nominee for President, General George McClellan.
Hence, the Republican Party’s insiders and the Radicals (the abolitionist and most anti-Southern faction in the party) saw in Johnson something of a political arriviste and someone not to be trusted. He was perceived, mostly correctly, as being sympathetic to the plight of the South and to ex-Confederates, even though his hard-scrabble upbringing caused him also to hold class-based animosities toward the Southern planter class. His view on how to deal with the post-war South was more in line with the vision of Lincoln and far more conciliatory than the Radicals’ version of Congressional Reconstruction.
In the opinion of many Washington insiders, Johnson also had an off-putting personality, due to a lack of refinement and formal education. That said, he had been a popular populist politician, and he was a very accomplished orator. He campaigned against the Radical Republican House candidates in the 1866 election, which proved to be a big mistake. Various repressive moves by newly-formed Southern governments against their black residents, especially newly-freed slaves, had inflamed popular opinion in the North against the South. Johnson’s oftentimes vitriolic and personal attacks on his opponents backfired, and the Radicals increased their influence in the next Congress.
The Reconstruction Congress passes the Tenure of Office Act of 1867 to prevent President Andrew Johnson from firing executive officers without consent of the Senate
On March 2, 1867, Congress passed the Tenure of Office Act over Johnson’s veto. The Act provided that any federal executive officer whose appointment required Senate consent could not be removed by the President and would hold office until the Senate approved a replacement. An exception was made when the Senate was in recess. Then, the President could remove such an officer, but only for specified cause until the Senate had a chance to vote on the removal. If the Senate did not consent to the removal, the officer regained his position.
In August 1867, Johnson removed Secretary of War Edwin Stanton. Stanton, though a Republican, had long been a source of irritation to many in the administration, but Lincoln had held onto him for his abilities in running the War Department. Stanton had openly aligned himself with the Radicals in Congress and was the source of leaks to them of information about Johnson and the Cabinet. In Stanton’s stead, Johnson appointed General Ulysses S. Grant. Upon returning from their recess in December 1867, the Senate refused to confirm that appointment. Grant stepped down, and Stanton reassumed his office. Johnson then outright fired Stanton in February 1868 and appointed Major General Lorenzo Thomas in his stead. Stanton barricaded himself in the War Department and refused to allow Thomas entry. The Senate being in session, Johnson’s firing of Stanton violated the Tenure of Office Act.
President Johnson’s impeachment and acquittal over firing the Secretary of War in violation of the Tenure of Office Act
The House of Representatives impeached Johnson for his violation of the Act. At the Senate trial, Johnson’s attorneys argued that the Act was an unconstitutional infringement of executive authority. They used the First Congress’s statute concerning the President’s removal power, Jackson’s firing of Secretary Duane, and general principles of the unitary executive structure adhered to, at that time, for 80 years. In response, the House’s impeachment managers claimed that the Act was a definitive declaration of this issue, and that Congress held the ultimate authority to interpret the Constitution. The last, rather bold, position, while defensible on republican principles, clashed with claims of judicial power “to say what the Constitution means” made by the Supreme Court since the 1790s and certainly clashes with pronouncements of judicial supremacy in vogue since at least the mid-20th century.
The trial raised numerous fundamental issues about the power to impeach and remove the President unrelated to the substance of the constitutional claims about executive power. In the end, the Senate voted 35-19 in favor of conviction on each of the three strongest articles of impeachment, one vote short of the 2/3 supermajority required. Seven Republicans (out of 42) joined all nine Democrats and three others to vote “not guilty.” The constitutionality of the Tenure of Office Act of 1867 was never contested in court. Rather, in response to the objections of Johnson’s successor, Ulysses S. Grant, the Act was significantly weakened by subsequent legislation soon after Johnson left office. At the insistence of President Grover Cleveland, the Act was repealed entirely in 1887, by which time Congress had accepted the argument that it constituted an unconstitutional invasion of executive power.
However, the issue did not die with the repeal of the Tenure of Office Act of 1867. A similar structure of Senatorial consent as a requirement for removal of executive officers whose appointment required Senatorial consent underlay a statute from 1876 which applied to postmasters. The difference in this case was that postmasters were inferior officers, quite unlike the Secretary of War fired by Andrew Johnson. The postmasters served for terms of four years. One such appointee, Frank Myers, was fired by the Postmaster General on the direction of President Woodrow Wilson after being in office only three years.
The Supreme Court’s strong endorsement of the unitary executive in Myers v. United States, and the end of Senatorial consent for removal of executive officials.
Myers v. United States in 1926 held in favor of the President’s power to remove even inferior executive officers without Senatorial consent. Chief Justice William Howard Taft’s opinion for the 6-man majority was long, broad in scope, and, as expected from the scholarly Taft, fortified by much historical research and tight reasoning. Taft also had been President, so he understood the practical necessity of protecting the President’s position as chief executive and inclined him to favor the unitary executive. The main dissent, by the very conservative Justice James McReynolds, was almost as long and full of historical references. The liberal Justice Louis Brandeis and Justice Oliver Wendell Holmes wrote shorter dissents.
Taft recognized that the Constitution does not expressly confer on the President the power to remove officials in the executive branch. Instead, he relied on Madison’s argument in the First Congress, repeated by Andrew Jackson in his firing of Secretary Duane, that the President’s constitutional duty to “take care that the laws be faithfully executed” requires an unrestricted power to remove executive officials. Taft then called into service Hamilton’s Pacificus essays about the nature of the “executive power” clause and their broad reading of implied executive powers. Next, Taft appealed to general principles of separation of powers as a fundamental structural component of our constitutional system. Therefore, legislative interference with the operation of the executive branch must be interpreted narrowly. As a practical matter, aside from textual and historical analysis, the President, as chief executive, must have the power to control subordinates, which includes the power to fire them at will.
Formal and informal amendment of the Constitution
Last, Taft appealed to what I have taught my students is a type of informal amendment of the Constitution. There are quite different ways by which the Constitution might be kept “up-to-date.” Most obvious, Article V of the Constitution provides several methods of formally amending the Constitution through the actions of designated supermajorities. This is the process taught in civics and government classes and is grounded in republican principles of voting by representatives elected for the task. It is politically cumbersome and has been used infrequently.
In addition, through a series of cases beginning in the late 18th century and crystallized in 1803 in Marbury v. Madison, the Supreme Court has been able to assume for itself a de facto power to amend the Constitution by 5-4 opinions in cases brought before it through the doctrine of constitutional judicial review. While not expressly authorized under the Constitution, this has become a mostly accepted part of the Court’s role over the years, although the boundaries of this informal power are not entirely fixed or uncontested.
The Supreme Court’s judicial review lacks the element of broad popular consent that is part of the Article V amendment process. The “informal amendment” I describe next is one of custom through practice and rests on a republican basis of popular consent by long, tacit acceptance. Justice Felix Frankfurter explained the essence in a concurring opinion in 1952 in Youngstown Sheet & Tube Co. v. Sawyer: “The Constitution is a framework for government. Therefore, the way the framework has consistently operated fairly establishes that is has operated according to its true nature. Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words or a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on ‘executive Power’ vested in the President by § 1 of Art. II.”
In Myers, Taft concluded that the President’s power to fire executive officials at will had become a part of the Constitution by acceptance of the practice by all three branches of the federal government over the course of three-quarters of a century. Thus, even if the Constitution did not expressly confer the President’s unfettered removal power, it did not expressly deny it, either. The text being silent, the document in effect had been informally amended by this long-adhered-to constitutional custom. One awkward flaw in that part of the analysis was that the specific law in question in Myers had been on the book for a half-century.
Unlike the previous controversies, all of which involved the President’s ability to fire Cabinet secretaries, Myers involved an inferior executive officer appointed for a fixed term. As Brandeis argued in his dissent, Taft’s opinion in Myers seemed to conflict with Marbury v. Madison. There, Chief Justice John Marshall had opined that the President could not have removed William Marbury from his position, had Marbury already assumed it, because the office was fixed for a five-year term. That had no direct bearing on Myers, however. As Taft emphasized, that part of the Marbury opinion was mere dictum, that is, a legal point not necessary to be addressed for the eventual outcome. Taft also noted in passing that a later case, Parsons v. United States, had held that Marbury’s claimed office was justice of the peace, which was a judicial, not an executive, position.
With the Myers decision, the attempts by Congress to subject the President’s removal power to Senatorial supervision had failed politically and constitutionally. For the moment, the President as chief executive in control of his subordinate officers in the executive branch was secure. The next essay will address the Supreme Court’s retrenchment of its support for the President in the New Deal and the eventual collapse of that effort in Trump v. Slaughter.