TENURE-OF-OFFICE ACT.
The general object of the Tenure-of-Office Act was to protect civil officers from removal without the advice and consent of the Senate; and it was made in express terms applicable to “every person holding any civil office to which he has been appointed by and with the advice and consent of the Senate.” To this provision, so broad in character, was appended a proviso:—
“Provided, That the Secretaries of State, of the Treasury, of War, of the Navy, and of the Interior, the Postmaster-General, and the Attorney-General, shall hold their offices respectively for and during the term of the President by whom they may have been appointed and for one month thereafter, subject to removal by and with the advice and consent of the Senate.”[198]
As this general protection from removal without the advice and consent of the Senate might be productive of embarrassment during the recess of the Senate, it was further provided, in a second section, that, during such recess, any person, except judges of the United States courts, may be suspended from office by the President on reasons assigned, which it is made his duty to report to the Senate within twenty days after its next meeting, and if the Senate concurs, then the President may remove the officer and appoint a successor; but if the Senate does not concur, then the suspended officer shall forthwith resume his functions.
On this statute two questions arise: first, as to its constitutionality, and, secondly, as to its application to Mr. Stanton, so as to protect him from removal without the advice and consent of the Senate.
It is impossible not to confess in advance that both have been already practically settled. The statute was passed over the veto of the President by two thirds of both Houses, who thus solemnly united in declaring its constitutionality. Then came the suspension of Mr. Stanton, and his restoration to office by a triumphant vote of the Senate, being no less than thirty-five to six,—thus establishing not only the constitutionality of the statute, but also its protecting application to Mr. Stanton. And then came the resolution of the Senate, adopted, after protracted debate, on the 21st February, by a vote of twenty-eight to six, declaring, that, under the Constitution and laws of the United States, the President has no power to remove the Secretary of War and to designate any other officer to perform the duties of that office ad interim; thus for the third time affirming the constitutionality of the statute, and for the second time its protecting application to Mr. Stanton. There is no instance in our history where there has been such a succession of votes, with such large majorities, declaring the conclusions of the Senate, and fixing them beyond recall. “Thrice is he armed that hath his quarrel just”; but the Tenure-of-Office Act is armed thrice, by the votes of the Senate. The apologists of the President seem to say of these solemn votes, “Thrice the brinded cat hath mewed”; but such a threefold record cannot be treated with levity.
The question of the constitutionality of this statute complicates itself with the power of removal under the National Constitution; but I shall not consider the latter question at this stage. It will naturally present itself when we consider the power of removal under the National Constitution, which has been claimed by the President. For the present I assume the constitutionality of the statute.