The Impeachment of Andrew Johnson
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Harper's Weekly, March 28, 1868, page 194

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The Impeachment of the President is earnestly resisted on the ground that he is entitled to a Cabinet in unison with him. We have already shown in previous articles that the Constitution did not contemplate the creation of a Cabinet, but that one has grown up from the custom of successive administrations. We repeat, however, the whole of the clause conferring on the President power over the Heads of Departments: "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."

This power clearly negatives the idea that a much higher power over them was intended to be conferred, and negatives that also that it was the intention of the framers of the Constitution to create a Cabinet. The duties of the officers indicated by the description of "the principal officer in each of the Executive Departments" are not specified in the Constitution; but Congress, under the power "to make all laws which shall be necessary and proper for carrying into execution"… the "powers vested by this Constitution… in any department or officer thereof," have, from time to time, created various departments and changed those duties at pleasure. Did the Constitution intend that the President at all times and under all circumstances, shall have in those departments such officers as he shall think proper? The power conferred on him in the selection of the Heads of Departments is that he shall "nominate and by and with the advice and consent of the Senate appoint" them. It was intended that he should take the advice of the Senate on that head, and after obtaining their consent appoint. General Washington construed the Executive power "by and with the advice and consent of the Senate to make treaties," as intending that he should in advance take such advice. In the proceedings, in 1789, of the First Congress, will be found a note from General Washington, addressed to the Senate, informing them that he would meet them at their chamber, to take their advice on the formation of an Indian treaty, for which purpose the Senate passed a resolution to receive him at the time mentioned. They met and consulted together; and such was no doubt the intention of the Constitution. The language of the power with respect to officers is somewhat different; but that the Senate was to advise with the President on that subject is very clear. The practice has doubtless been abandoned from the multiplicity of nominations and appointments. The language contemplated intimate relations between the Senate and the President on that subject. It will be recollected that Mr. Stanton, under the Tenure-of-Office Act, was suspended by President Johnson, and that General Grant was appointed Secretary ad interim under the authority of that act. The suspension of Mr. Stanton was reported to the Senate as having been made for some of the causes of objection which the act enumerates, but they were deemed insufficient, and Mr. Stanton was restored. This action amounted to the Senate’s advice on that subject, and was equivalent to the refusal of the Senate to consent to Mr. Stanton’s removal. In defiance of such advice and of the plain intent of the Tenure-of-Office Act, the President removed Mr. Stanton. This, as we have seen, constitutes one of the grounds of impeachment.

Mr. Stanton’s removal was proof not only of a want of cordiality between the President and the Senate, but of a wide difference between them, and it is scarcely to be expected that the Senate, which is invested with the power "to advise and consent" to appointments, would use the power in order to arm the President with an officer in hostility—in the gravest matters of public concern—not only to the Senate, but also to the House of Representatives. Such an officer, if appointed, would add to the power of the President to obstruct the action of Congress. Indeed, with the complete command of the War Department and of the army and all the material of war, the President might defy the popular branch of the Government. The President’s course furnished just grounds of suspicion that his motives in appointing General Thomas to the control of that Department were such as could not be tolerated. All laws conflicting with the Tenure-of-Office Act having been in terms repealed by it, there was no such office as the "Secretary of War ad interim," except in the contingency of suspension. Removal, not suspension, was resorted to, and hence the chief clerk was to act as custodian of the books and papers if a vacancy had occurred, which it did not; but the President chose to assume that there was a vacancy against the fact, and to order General Thomas to fill it. The order was in the nature of a military order from the commander-in-Chief to a subordinate, who was directed in a wholly illegal manner to take possession of the Department. These extraordinary proceedings show that Congress was right in withdrawing from the President the power of removal which the act of 1789 assumed that he possessed, and in declaring that it should be exercised only by and with the advice and consent of the Senate.

The Secretary of War is, in ordinary times, when there is perfect accord between all the branches of the Government, as important to Congress as to the President. It is in the power of Congress at any time to abolish the office, and to create it again at their pleasure. If they can destroy and create at pleasure, may no Congress say that this officer shall not be removed except by the same ceremonies that were required before appointment? — that is to say, the Senate’s advice and consent.

Mr. Madison undoubtedly argued in Congress in favor of the President’s power; but, as he was one of the recognized authors of the Federalist, he was clearly committed to the doctrine advanced in the 77th No. of that work, that "the consent of that body (the Senate) would be necessary to displace as well as to appoint." The names of the several authors were not at the time of their publication announced, and hence it may be said (although Mr. Hamilton was the author of that article) that Mr. Madison abandoned, when supporting Washington’s administration, a position which he advanced to secure the adoption of the Constitution.

"Where a man"(said Mr. Hamilton)"in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself."

These are the words of one of the authors of the Constitution, of its most distinguished commentator, and of a Cabinet officer afterward of the highest authority. They do not sustain the haughty claims made in the President’s behalf, as if he were "the sole disposer of offices." The President has encroached upon this distribution of power in face of the advice of the Senate deliberately given, in face of the solemn decision of Congress, and, it now appears, in face of the true meaning of the Constitution.

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