Andrew Johnson: Veto of Tenure of Office

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      The important off-year election of 1866 went heavily in favour of the Radical Republicans. By the time the 39th Congress convened in December it was apparent that the President Andrew Johnson's authority and prestige—never high to begin with—were even further diminished. His vetoes were repeatedly ineffective against Congress. One more effort to detract from presidential power was the Tenure of Office Act, passed over a veto on March 2, 1867. The act forbade the president to remove any officeholder, including cabinet members, who had been appointed with Senate consent. It was the president's alleged violation of this act by trying to remove Secretary of War Edwin Stanton that led to impeachment proceedings in 1868. Portions of the March 2 veto are presented below.

      To the Senate of the United States:

      I have carefully examined the bill “to regulate the tenure of certain civil offices.” The material portion of the bill is contained in the 1st Section, and is of the effect following, namely:

That every person holding any civil office to which he has been appointed, by and with the advice and consent of the Senate, and every person who shall hereafter be appointed to any such office and shall become duly qualified to act therein, is and shall be entitled to hold such office until a successor shall have been appointed by the President, with the advice and consent of the Senate, and duly qualified; and 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.

      These provisions are qualified by a reservation in the 4th Section, “that nothing contained in the bill shall be construed to extend the term of any office the duration of which is limited by law.” In effect, the bill provides that the President shall not remove from their places any of the civilofficers whose terms of service are not limited by law without the advice and consent of the Senate of the United States. The bill in this respect conflicts, in my judgment, with the Constitution of the United States.

      The question, as Congress is well aware, is by no means a new one. That the power of removal is constitutionally vested in the President of the United States is a principle which has been not more distinctly declared by judicial authority and judicial commentators than it has been uniformly practised upon by the Legislative and Executive departments of the government. The question arose in the House of Representatives so early as the 16th of June, 1789, on the bill for establishing an Executive Department, denominated “the Department of Foreign Affairs.” The first clause of the bill, after recapitulating the functions of that officer and defining his duties, had these words: “To be removable from office by the President of the United States.”

      It was moved to strike out these words, and the motion was sustained with great ability and vigor. It was insisted that the President could not constitutionally exercise the power of removal exclusively of the Senate; that The Federalist so interpreted the Constitution when arguing for its adoption by the several states; that the Constitution had nowhere given the President power of removal, either expressly or by strong implication, but, on the contrary, had distinctly provided for removals from office by impeachment only. . . .

      The nature of things, the great objects of society, the express objects of the Constitution itself require that this thing should be otherwise. To unite the Senate with the President in the exercise of the power, it was said, “would involve us in the most serious difficulty. Suppose a discovery of any of those events should take place when the Senate is not in session; how is the remedy to be applied? The evil could be avoided in no other way than by the Senate sitting always.” In regard to the danger of the power being abused if exercised by one man, it was said “that the danger is as great with respect to the Senate, who are assembled from various parts of the continent, with different impressions and opinions”; “that such a body is more likely to misuse the power of removal than the man whom the united voice of America calls to the presidential chair. As the nature of government requires the power of removal,” it was maintained, “that it should be exercised in this way by the hand capable of exerting itself with effect; and the power must be conferred on the President by the Constitution as the executive officer of the government.” . . .

      Under these circumstances, as a depositary of the executive authority of the nation, I do not feel at liberty to unite with Congress in reversing it by giving my approval to the bill. At the early day when this question was settled, and, indeed, at the several periods when it has subsequently been agitated, the success of the Constitution of the United States, as a new and peculiar system of free, representative government, was held doubtful in other countries and was even a subject of patriotic apprehension among the American people themselves. A trial of nearly eighty years, through the vicissitudes of foreign conflicts and of civil war, is confidently regarded as having extinguished all such doubts and apprehensions for the future.

      During that eighty years, the people of the United States have enjoyed a measure of security, peace, prosperity, and happiness never surpassed by any nation. It cannot be doubted that the triumphant success of the Constitution is due to the wonderful wisdom with which the functions of government were distributed between the three principal departments—the Legislative, the Executive, and the Judicial—and to the fidelity with which each has confined itself or been confined by the general voice of the nation within its peculiar and proper sphere. While a just, proper, and watchful jealousy of executive power constantly prevails, as it ought ever to prevail, yet it is equally true that an efficient executive, capable, in the language of the oath prescribed to the President, of executing the laws and, within the sphere of executive action, of preserving, protecting, and defending the Constitution of the United States, is an indispensable security for tranquillity at home and peace, honor, and safety abroad.

      Governments have been erected in many countries upon our model. If one or many of them have thus far failed in fully securing to their people the benefits which we have derived from our system, it may be confidently asserted that their misfortune has resulted from their unfortunate failure to maintain the integrity of each of the three great departments while preserving harmony among them all.

      Having at an early period accepted the Constitution in regard to the executive office in the sense in which it was interpreted with the concurrence of its founders, I have found no sufficient grounds in the arguments now opposed to that construction or in any assumed necessity of the times for changing those opinions. For these reasons I return the bill to the Senate, in which house it originated, for the further consideration of Congress which the Constitution prescribes. Insomuch as the several parts of the bill which I have not considered are matters chiefly of detail and are based altogether upon the theory of the Constitution from which I am obliged to dissent, I have not thought it necessary to examine them with a view to make them an occasion of distinct and special objections.

Source: A Compilation of the Messages and Papers of the Presidents 1789-1897, James D. Richardson, ed., Washington, 1896-1899, Vol. VI, pp. 492-498.

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