The Impeachment of Andrew Johnson
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Harper's Weekly,
March 21, 1868 page 178

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President Johnson, in deciding to remove Mr. Stanton, accepted the construction put upon the Constitution by the first Congress, that the power of removal is an Executive power, and rejected that of the last Congress that it shall be exercised only by and with the advice and consent of the Senate. He did this with his eyes open, in clear view of the fact that the House which impeaches, and the Senate which tries, had, as legislators under the solemnity of an oath to support the Constitution, asserted the policy in the Tenure-of-Office Act which he deliberately spurned and contemned. He knew full well that the Court of Impeachment were judges of the law and of the fact—no higher tribunal having been created by the people—and that it was improbable that they would reject as members of the Court what as Senators they had solemnly avowed. He can not complain, therefore, of the situation, as he chose it voluntarily and defiantly—acting in conjunction with those who seek to defeat the general policy of Congress. He was the head of the Government; he had sworn to see the laws faithfully executed, but he placed himself in direct opposition to their execution. Congress could not retain the support of the people, or secure respect for the laws in any quarter, if an instance so signal and flagrant of contempt for their authority, involving a threat of repetition, were overlooked.

The First Congress was undoubtedly influenced in its decision by the exalted character of the President, and the probability that the succession for a long course of years would devolve on the revolutionary patriots who constituted the supports of Washington. Mr. Madison said, in the debate on the motion to strike out the words "to be removable by the President " in the act creating the Secretary of Foreign Affairs, that "If the Constitution is silent, and it is a power the Legislature have a right to confer, it will appear to the world, if we strike out the clause, as if we doubted the propriety of vesting it in the President of the United States." Mr. Smith, member from South Carolina, observed, "Perhaps gentlemen are so much dazzled with the splendor of the virtues of the President as not to be able to see into futurity. The framers of the Constitution did not confine their views to the first person who was looked up to, to fill the Presidential chair."

The prudence of the several incumbents of the Presidency to, and including, John Quincy Adams, in exercising the power of removal, satisfied the country with the decision thus made. The instance during the administration of Mr. Adams, of the attempted removal of Jonathan Thompson, Collector of this port, is well remembered. A Committee consisting of important citizens of New York, headed by Charles King, went to Washington for that object. Mr. Adams expressed his willingness to gratify them, and they were about leaving. "But, gentlemen," said he, "you have not mentioned the objections you have to Mr. Thompson." "Why," said Mr. King, "he is against your Administration." Mr. Adams, finding there was no other objection, answered, that Mr. Thompson had a perfect right to his own opinion; and if there were no other reasons he should not be removed.

On the inauguration of General Jackson the doctrine that to the victors belong the spoils was announced, and in one year from his inauguration on the 4th of March, 1829, the removals amounted to eight in the diplomatic corps, thirty-six in the Executive departments, and one hundred and ninety-nine in important civil posts, whereas during the eight years of Washington’s administration only nine officers in the whole had been displaced. "This extraordinary change," said Judge Story, "has awakened general attention and brought back the whole controversy with regard to the Executive power of removal to a severe scrutiny. Many of the most eminent statesmen in the country," he continues, "have expressed a deliberate opinion that it is utterly indefensible, and that the only sound interpretation of the Constitution is that avowed upon its adoption; that is to say, that the power of removal belongs to the appointing power" – meaning the Senate conjointly with the President.

The Constitution expressly provides that the appointment of all inferior officers may be devolved upon the President alone, the Heads of Departments, or the Supreme Court. The appointment of all officers below the grade of the Heads of Department may thus be provided for by Congress, which might confer the authority on the Heads of Departments and the Supreme Court alone as to all officers respectively under them. This constitutional provision could not be satisfied if the President might remove such appointees at his pleasure. As to all such appointments, the power of removal would follow the appointing power, for otherwise perpetual conflict might exist between the two authorities, one insisting upon appointing, the other upon removing. Here, then, it must be admitted, is an exception which Congress may make to the universality of the rule authorizing removals, claimed as appertaining to the Presidential office. The character of this power, to be exercised by the Heads of Departments under the Constitution, furnishes a strong argument against the position that they themselves may be displaced by the President. The power of the President over them expressed in the Constitution is that "he may require the opinion in writing of the principal officer in each of the Executive departments upon any subject relating to the duties of their respective offices." The expression of this power would be wholly unnecessary if the Constitution, by necessary implication, gave the President alone power to remove these very officers, for this would have embraced entire control over their action. The Heads of Departments have duties to perform most intimately connected with Congress. Treaties are to be made by and with the advice, and subsequently by and with the consent of the Senate, provided two-thirds of those present concur. The Secretary of State, whose duties relate chiefly to foreign affairs, represents both the President and the Senate in this duty. The Secretary of the Treasury makes his report directly to Congress, not to the President. This is done to enable Congress to employ the proper means to meet the public expenditure. The Secretary of War is equally the representative of the Legislative and of the Executive Department. The power to declare war is wholly Legislative under our Constitution, differing in that respect from the British, under which it is wholly Executive. The controversy between Congress and the President with respect to the mode of tying up the ends of the war, in which he seeks to defeat their will constitutionally expressed—for in a civil war the terms of peace are fixed by Congress in its discretion—proves the necessity of exempting the Secretary of War from the President’s power of removal, except with the advice and consent of the Senate. If Congress may fix the tenure of any of these executive offices in a way to prevent the exercise by the President of the power of removal, it puts an end to the implication claimed in his behalf.

The power claimed for the President would enable him to defeat the action of the Senate in the matter of appointments, and thus in effect destroy the constitutional provision by which it is required. On the adjournment of the Senate the President, by removing the person appointed on their advice and consent, might substitute another and an unsuitable person—one to whose appointment such advice and consent had been refused. If to this it is answered, that the President would subject himself to impeachment, then we say that the offense committed more certainly deserves this remedy.

The theory that removal follow the appointing power, or if it do not, that Congress which creates may fix the precise tenure of office when not otherwise specified in the Constitution, reconciles provisions which on the opposite doctrine must be deemed utterly inconsistent. The power conferred on the President in terms to issue commissions in case of vacancy happening during the recess of the Senate is not in harmony with power claimed as implied that he may make and fill a vacancy at any time. The power conferred on Congress to devolve the appointment of inferior officers on the President alone, or the Supreme Court, or the Heads of Departments, can not be exercised consistently with the broad ground claimed for the President, that he, independently of Congress, may remove all executive officers even if their appointment and removal be devolved by Congress on the Heads of Departments alone.

The removability of executive officers by the Chief Executive derives its origin from the peculiarities of the British Constitution. It has been transplanted here not by express grant but by implication against the popular branch of our Government, and in favor of one against which our jealousies were aroused. In England the Queen has an inheritable estate in her office, which she needs to support by extraordinary power. But this power is allowed to her only on the condition that the great offices in the realm shall be filled in complete sub-serviency to the principles of the Parliamentary majority. When in a minority, the ministry resign. The President expects to have the benefit of the Queen’s prerogative, without submitting to the obligation which the Queen is obliged to concede of a ministry harmonious with Parliament. The denial of this obligation in England would produce a revolution. It can scarcely be expected that a bold defiance of the clearly and legally expressed will of Congress can go unredressed under our Government.

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