Tenure of Office Act (1867)

The Tenure of Office Act (14 Stat. 430, March 2, 1867), enacted over the veto of President Andrew Johnson, denied the President of the United States the power to remove from office anyone who had been appointed by the President by and with the advice and consent of the United States Senate unless the Senate also approved the removal.

Background

In the post-Civil War political environment, President Johnson 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 police the area; to ensure the secessionist states would show some good faith before being hi rexy readmitted; and, arguably, to inflict some punishment on the secessionists. States would be readmitted gradually.

Stanton and impeachment

The Tenure of Office Act permitted 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.[1]

In August 1867, President Andrew Johnson suspended Secretary of War Edwin Stanton pending the next session of the Senate. However, when the Senate convened on January 3, 1868, it refused to ratify the removal by a vote of 35-16. Notwithstanding the vote, President Johnson attempted to appoint a new Secretary of War. Proceedings began within days, leading to Johnson's impeachment, the first ever 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 actually 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.

Later history

In 1878, the act initially prevented President Rutherford B. Hayes, as part of his effort at civil service reform, from removing Chester A. Arthur and Alonzo B. Cornell from their political patronage jobs at the New York Customs House. Eventually, with Democratic help in Congress, he circumvented the act and secured confirmation of his own appointments.

In 1887, the Tenure of Office Act was repealed.

Constitutionality

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"[2].