Tenure of Office

Whose Right to Oust? It seems strange that a country should live and grow under a great ordinance for more than a century and a quarter and at the end of that time not be sure what parts of that ordinance mean. Yet such is the case of the U. S. For example, in the case of amendments to the Constitution. That document says that amendments be- come effective when adopted by Congress and "ratified by three-fourths of the States." Apparently rejection does not count; only ratification. But suppose that a state ratifies and then reverses itself--either before or after an amendment has been proclaimed adopted--what effect would such action have? It has never been settled.

Again, the Constitution says that the President shall appoint officials ''by and with the advice and consent of the Senate." But is the "advice and consent" of the Senate needed for their removal? That question also remains to be settled. It seems that it will be shortly.

One Frank S. Myers, Postmaster of Portland, Ore., was removed from office by the President one year before his term expired. Mr. Myers has since died. His heirs are suing to recover his salary for the rest of his term, contending that the Senate did not give its consent to his removal and, therefore, he technically remained in office.

In December, the case came up in the U. S. Supreme Court and Solicitor General James M. Beck appeared to contend that the President had power of removal. The case was put over until Mar. 16 and, last week, the Supreme Court appointed Senator Pepper of Pennsylvania to appear at the hearing as a "friend of the Court," since it is obvious that the Senate has a great interest in the outcome of the case.

The possibilities of the Court's decision, as they affect the power of the President and of the Senate, may be far-reaching. If the President has the power of summary removal, a future President might use it indiscriminately, removing even judges from the bench. If a definite consent of the Senate is needed for removal, a new check is placed on the President. Or it might be that, when the Senate approved a successor, it would, in that act, be considered to give its consent to a man's removal; and a man might be considered to continue in office until his successor was approved. An extreme interpretation in this direction would prevent the President from removing even a member of his Cabinet or his Secretary, if a difference of opinion arose between them.

Precedents. Alexander Hamilton was of the opinion that the consent of the Senate was necessary to remove an officer. Nevertheless, the first Congress acknowledged, in the act establishing the Treasury Department, that the President alone had full power of removal; but the vote on this delicate question, when taken in the Senate was a tie and only broken by the vote of the Vice President, John Adams.

It was some years before the power of removal again came to the fore, but it came--when Andrew Johnson and Congress were grappling at each other's throats. In 1867, Congress passed the Tenure of Office Act, prohibiting the President from removing any officer without the consent of the Senate. Congress was intent on having a different way from President Johnson's way in the administration of Reconstruction measures. In particular, it wished to see Secretary of War Edward McMasters Stanton continued in office because he was in sympathy with its Reconstruction policy and would be in charge of military measures in the South. Stanton disapproved of the Tenure of Office Act but, nevertheless, when the President asked his resignation, he refused to give it. So the President suspended him and made General Grant Secretary of War ad interim. When Congress assembled, it refused to consent to Stanton's removal and he returned to his office in the War Department building. President Johnson, however, appointed General Lorenzo Thomas Secretary of War. When Thomas tried to take over the Department, Stanton refused to budge. He had a hot temper and a sharp tongue. He sat tight, even lived in his office for a number of days. He called General Grant to his aid and General Carr was placed in charge of the War Department building to prevent Stanton's ejection by force.

Meanwhile, Congress undertook to impeach President Johnson, the principal charge being violation of the Tenure of Office Act. The impeachment proceedings failed, largely because there was a loophole in the wording of the Act. Shortly after, Stanton resigned.*

When President Grant came into office, the Tenure of Office Act was modified. Finally, in 1887, during President Cleveland's first administration, the Act was repealed.

But, during all this period, even when it was the main theme of impeachment proceedings against President Johnson, its constitutionality was never tested in court. It still remains a moot question what the makers of the Constitution wanted done about removals, or granting, as seems to have been the case, that they did not consider the matter, what the Constitution implies about removals.

*He was appointed to the Supreme Court by President Grant in 1869.