Green-Mountain freeman. [volume] (Montpelier, Vt.) 1844-1884, 1868-03-11
The Constituti0nality Of the Tenure
Of.Oflice Act,


The President claims for himself, and his
friends claim for him, that his sole object in
attempting to remove Secretary Stanton,
was to test the question of his right to re-
move any official appointed by the executive.
! He insists that the legislation depriving him
! of the power is an unconstitutional attempt
to interfere with the proper prerogatives Of
the executive, and that it is his duty, occu-
pying that Office, to resist this Congressional
encroachment, and bring the law at the
earliest possible moment to a decision in the
courts. Without stopping to consider the
irregular manner he has taken to accomplish
his purpose. we will briefly inquire whether
the tenure of-office act is in conflict with the
constitution.
The only power the President has in the
appointment of any official is with the con-
sent of the Senate. The language Of the
constitution is, :. he shall nominate, and by
< and with the advice and consent of the
- Senate, appoint He is further authorized
g TO fill up all vacancies that may happen
:. during the recess of the Senate, by grant
. ing commissions which shall expire at the
Z end of their next session. If the con-
stitution gives him any power of removing
an officer without the consent of the Senate
the grant must be found in these two extracts
from that instrument. The tenure-of-office
act declares that the President shall not
remove an officer except " by and with the
9 advice and consent Of the Senate and
the President says it conflicts with these
provisions of the fundamental law.
An absolute power to appoint would OBJ
viously carry with it a similar power to
remove, except in case of fixed term of
Office like that of judges. How can quail
fed power of appointment give an absolute
power Of removal? Does not a bare state
nent of the question suggest its answer?
The constitution does not give the President
power to make cabinet officer while the
Senate is in session, except with the con-
currence of that body does it give him the
power to unmake such an officer? Congress
cannot enact a law without sending it to the
President for his approval can it repeal
the law without sending the bill to the
President for his sanction? The power to
appoint officers is no more vested in the
President alone, than the power to make
laws is vested in Congress alone, and why
may the President act alone in unmaking
officials, and Congress not act alone in I'M
making laws? Yet the men who howl about
the tenure-of Office act would be the loudest
in the denunciation of Congress, if it should
- 20 - Il
to the President for his approval. Yet what
rights has the President in the one case,
that Congress has not in the other?
The President and his friends, however.
insist that his construction of the consttu-
ton was endorsed by the Senate in 1889,
and has since been the well established
practice of all occupants of the presidential
Office. But the decision of the Senate in
1899 was only by the casting vote of the
Vice President, showing that the Senate was
equally divided at that time. And that
Senate had no power to bind this Senate, or
any other, as to its views of constitutional
law. Neither practice nor acquiescence can
make the constitution different from what
its plain language means. A usurpation of
any power never makes that usurpation
right. \ great variety of reasons, not Of
any force now, might have influenced the
decision at that time: and among these
reasons might have been many not at all
involving the question of constitutionality
Many now think that the President ought to
have the power to remove an obnoxious
II Ionht cin
fuenced votes in 1889 In short, an opinion
of the Senate or the Congress of 1889 in
respect to constitutional question, may be
just as wisely and justly overruled now as
the law of that Congress can now be called
in question or repealed. The Congress of
reversed the decision of the Congress of
1899. What superior wisdom or knowledge
of constitutional law has President johnson
that he should now be able to see that the
old Congress was right and the new Congress
wrong?
We have no doubt, notwithstanding the
practice of the President, that the great
majority of those who have formerly or
more recently investigated the subject, have
been persuaded that the constitution did mol
confer upon the President the power of re-
removal Of officers whose appointments were
made with the consent of the Senate. Daniel
Webster held this opinion in 1888, saying
this, in a speech in the Senate at that time
Il think, then, sir, that the power of
appointment naturally and necessarily in
cludes the power of removal, where no llml-
tation is expressed, nor any tenure but that
at will declared. The power of appointment
/ being conferred on the President and Senate
[ think the potoer of renaOrdl trent along ruth
1t. and should hare been regarded as part Of
II, and exercised by the same hands. L think
the legislature possesses the p0,oer of regulating
the condition., duration, quaht fcation, and ten
IRE of office in all cases iohere the constitution
has made cypress provision on the SUBJECT
| am, therefore, of opinion that it is compe-
| tent for Congress to declare by law, as one
qualification of the tenure of Office, that the
incumbent shall remain in place till the Presi-
dent shall rennoUe him, for reasons to be stated
to the Senate. And am of opinion that this
qualification, mild and gentle it is, will
have some effect in arresting the evils which
beset the progress of the government and
seriously threaten its future prosperity.
Judge Story, in his commentaries on the
Constit ution, expresses the same opinion.
Indeed, it is difficult to see how any one, with
the text of the Constitution before him, can
come to any different conclusion.
1t should be remembered, also, in this dis
cussion, that the party which now upholds