Tenure of Office Act: Early Attempt to Limit Presidential Power

Taking the vote on the impeachment of President Johnson
Taking the vote on the impeachment of President Johnson.

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The Tenure of Office Act, a law passed by the U.S. Congress over the veto of President Andrew Johnson on March 2, 1867, was an early attempt to restrict the power of the executive branch. It required the president of the United States to get the Senate’s consent to fire any cabinet secretary or another federal official whose appointment had been approved by the Senate. When President Johnson defied the act, the political power struggle led to America’s first presidential impeachment trial.

Key Takeaways: Tenure of Office Act

  • The Tenure of Office Act of 1867 required the President of the United States to get the approval of the Senate in order to remove cabinet secretaries or other presidentially-appointed officials from office.
  • Congress passed the Tenure of Office Act over the veto of President Andrew Johnson.
  • President Johnson’s repeated attempts to defy the Tenure of Office Act led to a narrowly-failed attempt to remove him from office through impeachment.
  • Though it had been repealed in 1887, the Tenure of Office Act was declared unconstitutional by the U.S. Supreme Court in 1926.

Background and Context

When President Johnson took office on April 15, 1865, presidents had the unrestricted power to fire appointed government officials. However, controlling both houses of Congress at the time, Radical Republicans created the Tenure of Office Act to protect members of Johnson’s cabinet who sided with them in opposing the Democratic president’s Southern secessionist state-friendly reconstruction policies. Specifically, the Republicans wanted to protect Secretary of War Edwin M. Stanton, who had been appointed by Republican President Abraham Lincoln.

President Andrew Johnson
Johnson (1808-1875) was Abraham Lincoln's vice-president and succeeded Lincoln as president after his assassination. (Photo by The Print Collector/Print Collector/Getty Images)

As soon as Congress enacted the Tenure of Office Act over his veto, President Johnson defied it by trying to replace Stanton with General of the Army Ulysses S. Grant. When the Senate refused to approve his action, Johnson persisted, this time trying to replace Stanton with Adjutant General Lorenzo Thomas. Now fed up with the situation, the Senate rejected the Thomas appointment and on February 24, 1868, the House voted 126 to 47 to impeach President Johnson. Of the eleven articles of impeachment voted against Johnson, nine cited his repeated defiance of the Tenure of Office Act in trying to replace Stanton. Specifically, the House charged Johnson with bringing into “disgrace, ridicule, hatred, contempt, and reproach the Congress of the United States.”

Johnson's Impeachment Trial

The Senate impeachment trial of Andrew Johnson began on March 4, 1868, and lasted 11 weeks. Senators arguing to convict and remove Johnson from office struggled with one major question: Had Johnson actually violated the Tenure of Office Act or not?

The wording of the act was unclear. Secretary of War Stanton had been appointed by President Lincoln and had never been officially re-appointed and confirmed after Johnson took over. While by its wording, the Tenure Act clearly protected office holders appointed by current presidents, it only protected Cabinet secretaries for one month after a new president took office. Johnson, it appeared, may have been acting within his rights in removing Stanton.

During the lengthy, often contentious trial, Johnson also took shrewd political steps to appease his congressional accusers. First, he promised to support and enforce the Republicans’ Reconstruction policies and to stop giving his notoriously fiery speeches attacking them. Then, he arguably saved his presidency by appointing General John M. Schofield, a man well respected by most Republicans, as the new Secretary of War.

Whether influenced more by the ambiguity of the Tenure Act or Johnson’s political concessions, the Senate allowed Johnson to remain in office. On May 16, 1868, the then 54 Senators voted 35 to 19 to convict Johnson—just one vote short of the two-thirds “supermajority” vote necessary to remove the president from office.

Andrew Johnson Veto
Illustration (by JL Magee), entitled 'The Man That Blocks Up the Highway,' depicts President Andrew Johnson as he stands in front of a log barrier, labeled 'Veto,' while various men with carriages titled Freedmen's Bureau, Civil Rights, and Reconstruction are barred from crossing, 1866. Library of Congress / Interim Archives / Getty Images

Tough he was allowed to remain in office, Johnson spent the rest of his presidency issuing vetoes of Republican reconstruction bills, only to see Congress swiftly override them. The uproar over the Tenure of Office Act impeachment along with Johnson’s continued attempts to obstruct reconstruction angered voters. In the 1868 presidential election—the first since the abolition of slavery—Republican candidate General Ulysses S. Grant defeated Democrat Horatio Seymour.

Constitutional Challenge and Repeal

Congress repealed the Tenure of Office Act in 1887 after President Grover Cleveland argued that it violated the intent of the Appointments Clause (Article II, Section 2) of the U.S. Constitution, which he said granted the president the sole power to remove presidential appointees from office.

The question of the Tenure Act’s constitutionality lingered until 1926 when the U.S. Supreme Court, in the case of Myers v. United States, ruled it unconstitutional.

The case arose when President Woodrow Wilson removed Frank S. Myers, a Portland, Oregon postmaster, from office. In his appeal, Myers argued that his firing had violated a provision of the 1867 Tenure of Office Act which stated, “Postmasters of the first, second, and third classes shall be appointed and may be removed by the President with the advice and consent of the Senate.”

The Supreme Court ruled 6-3 that while the Constitution does provide for how non-elected officials are to be appointed, it does not mention how they should be dismissed. Instead, the court found that the president’s power to dismiss his own executive branch staff was implied by the Appointments Clause. Accordingly, the Supreme Court—nearly 60 years later—ruled that the Tenure of Office Act had violated the constitutionally established separation of powers between the executive and legislative branches.

Sources and Further Reference