A Compilation of the Messages and Papers of the Presidents. Volume 6, part 2: Andrew Johnson

by Unknown

The fourth section of the same act restricts the term of offices to the limit prescribed by the law creating them.

That part of the first section which precedes the proviso declares that every person holding a civil office to which he has been or may be appointed by and with the advice and consent of the Senate shall hold such office until a successor shall have been in like manner appointed. It purports to take from the Executive, during the fixed time established for the tenure of the office, the independent power of removal, and to require for such removal the concurrent action of the President and the Senate.

The proviso that follows proceeds to fix the term of office of the seven heads of Departments, whose tenure never had been defined before, by prescribing that they "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."

Thus, as to these enumerated officers, the proviso takes from the President the power of removal except with the advice and consent of the Senate. By its terms, however, before he can be deprived of the power to displace them it must appear that he himself has appointed them. It is only in that case that they have any tenure of office or any independent right to hold during the term of the President and for one month after the cessation of his official functions. The proviso, therefore, gives no tenure of office to any one of these officers who has been appointed by a former President beyond one month after the accession of his successor.

In the case of Mr. Stanton, the only appointment under which he held the office of Secretary of War was that conferred upon him by my immediate predecessor, with the advice and consent of the Senate. He has never held from me any appointment as the head of the War Department. Whatever right he had to hold the office was derived from that original appointment and my own sufferance. The law was not intended to protect such an incumbent of the War Department by taking from the President the power to remove him. This, in my judgment, is perfectly clear, and the law itself admits of no other just construction. We find in all that portion of the first section which precedes the proviso that as to civil officers generally the President is deprived of the power of removal, and it is plain that if there had been no proviso that power would just as clearly have been taken from him so far as it applies to the seven heads of Departments. But for reasons which were no doubt satisfactory to Congress these principal officers were specially provided for, and as to them the express and only requirement is that the President who has appointed them shall not without the advice and consent of the Senate remove them from office. The consequence is that as to my Cabinet, embracing the seven officers designated in the first section, the act takes from me the power, without the concurrence of the Senate, to remove any one of them that I have appointed, but it does not protect such of them as I did not appoint, nor give to them any tenure of office beyond my pleasure.

An examination of this act, then, shows that while in one part of the section provision is made for officers generally, in another clause there is a class of officers, designated by their official titles, who are excepted from the general terms of the law, and in reference to whom a clear distinction is made as to the general power of removal limited in the first clause of the section.

This distinction is that as to such of these enumerated officers as hold under the appointment of the President the power of removal can only be exercised by him with the consent of the Senate, while as to those who have not been appointed by him there is no like denial of his power to displace them. It would be a violation of the plain meaning of this enactment to place Mr. Stanton upon the same footing as those heads of Departments who have been appointed by myself. As to him, this law gives him no tenure of office. The members of my Cabinet who have been appointed by me are by this act entitled to hold for one month after the term of my office shall cease; but Mr. Stanton could not, against the wishes of my successor, hold a moment thereafter. If he were permitted by that successor to hold for the first two weeks, would that successor have no power to remove him? But the power of my successor over him could be no greater than my own. If my successor would have the power to remove Mr. Stanton after permitting him to remain a period of two weeks, because he was not appointed by him, but by his predecessor, I, who have tolerated Mr. Stanton for more than two years, certainly have the same right to remove him, and upon the same ground, namely, that he was not appointed by me, but by my predecessor.

Under this construction of the tenure-of-office act, I have never doubted my power to remove Mr. Stanton.

Whether the act were constitutional or not, it was always my opinion that it did not secure him from removal. I was, however, aware that there were doubts as to the construction of the law, and from the first I deemed it desirable that at the earliest possible moment those doubts should be settled and the true construction of the act fixed by decision of the Supreme Court of the United States. My order of suspension in August last was intended to place the case in such a position as would make a resort to a judicial decision both necessary and proper. My understanding and wishes, however, under that order of suspension were frustrated, and the late order for Mr. Stanton's removal was a further step toward the accomplishment of that purpose.

I repeat that my own convictions as to the true construction of the law and as to its constitutionality were well settled and were sustained by every member of my Cabinet, including Mr. Stanton himself. Upon the question of constitutionality, each one in turn deliberately advised me that the tenure-of-office act was unconstitutional. Upon the question whether, as to those members who were appointed by my predecessor, that act took from me the power to remove them, one of those members emphatically stated in the presence of the others sitting in Cabinet that they did not come within the provisions of the act, and it was no protection to them. No one dissented from this construction, and I understood them all to acquiesce in its correctness. In a matter of such grave consequence I was not disposed to rest upon my own opinions, though fortified by my constitutional advisers. I have therefore sought to bring the question at as early a day as possible before the Supreme Court of the United States for final and authoritative decision.