Green-Mountain freeman. [volume] (Montpelier, Vt.) 1844-1884, 1868-03-25
The Tenure of Office Law.

The Tenure of Office Law.
We have already briefly discussed the sub
Iect of the constitutionality of the tenure of
Office act, but as Democrats continually and
brazenly assert that Congress went in the
it may be of service to present some further
considerations respecting that enactment
In 1901, a case came before the Supreme
Court Of the United States, in which one as
pect of this question was considered. The
case is that of Marbury ps. Madison. Mar
bury had been appointed by the President,
with the consent of the Senate, Justice of
the Peace in the District of Columbia, and
his commission after being signed was with
held by Mr.. Madison, Secretary of State. The
Office to which Mr.. Marbury had been ap-
pointed had been created by act of Congress
and had fixed term of five wears. Marbury
brought petition for a mGndanus ordering
Mr.. Madison TO deliver the commission The
Court held, Chief Justice Marshall deliver
ing the opinion, that Marbury had been duly
appointed and was in fact Justice of the Peace
for the five years term but other grounds,
not important here, declined to issue the
mandamu, The Chief Justice said, g The
% discretion of the executive is to be exercis-
g ed until the appointment has been made.
" But having once made the appointment,
60 his power over the Office is terminated in
80 all cases ,chere by ha,o the officer is not re-
q IL LII
no more creation of Congress, than Mr..
Stanton's, and if Congress had the right to
fix term of five years to the former Office, by
equal right it had the power to fix a term OF
four years and one month to the office of See
rotary of War. The Cabinet by the tenure
of office law are not removable by the Presi-
dent except by the advice and consent of the
Senate, and the Constitution gives the Pres
ident no power to change that tenure of Office.
This early decision of the Court is full au-
thority in support of the right of Congress to
prescribe a term of Office for all Offices created
by that body.
The difficulty which some have had trouble
in explaining with this tenure of Office act
grows out of the practice of the government
and the acquiescence of the people in respect
to removals from Office. But if we carefully
examine this practice, we shall find that il
is nothing more than an acquiescence in a
course of procedure where there has been lit
tie chance for any contrary practice. and very
seldom. if ever, majority of both branches
of Congress, strong enough to successfully as
81 ha AZ how said in for
mer article, the action of the Congress Of
1889, apparently recognizing the President I
right to remove an officer, was the result of a
great variety of reasons and circumstances,
many of them having nothing tn do with the
constitutionality of the question and the ac-
ton of that Congress was negative rather
than positive, at the best, refusal to declare
that the President should not make removals
rather than declaration that he had such 6
right. Such action mere legislative, too
proves nothing of the opinions of the Con
gress of 1899 and if it did prove that ma
jority of that legislative body were willing tt
trust the power of removal to President Wash
| ington, it would not prove that the Congress
| of 1867 would have been either wise or saga
cious to have trusted President johnson will
similar powers. Andrew johnson is some
what different from George Washington
| Mr.. Madison is reported in 1879 as having
thought that the President had the Constitu
tional power to remove from Office, not as al
incident of the appointing power, but of the
executive power. Where Congress had tax
en- no action by legislation in respect to tn
tenure of Office, such n construction of thu
nstitution-although exceedingly liberia
for Democratic uctionists-woul'
not be mischievous. But the Constitution
expressly provides :. that Congress shall hav
- power to make all laws which shall be nee
" essary and proper for carrying into e1ecu
90 ton all powers vested by the constitution
:. in the government of the United States o
90 in any department or officer thereof II
: the case of the tenure of Office act, Congress
has exercised this power, and passed the laws
necessary for carrying into execution tn
Presidents power of appointment and reno
val. Wherein has Congress gone one ste
beyond the letter and spirit of the Constitu
ton in this action?