The Tenure of Office Act was a United States federal law, in force from 1867 to 1887, that was intended to restrict the power of the president to remove certain office-holders without the approval of the U.S. Senate. The law was enacted March 2, 1867, over the veto of President Andrew Johnson. It purported to deny the president the power to remove any executive officer who had been appointed by the president with the advice and consent of the Senate, unless the Senate approved the removal during the next full session of Congress.
Johnson's attempt to remove Secretary of War Edwin Stanton from office without the Senate's approval led to the impeachment of Johnson in early 1868 for violating the act.
The act was significantly amended by Congress on April 5, 1869, under President Ulysses S. Grant. Congress repealed the act in its entirety in 1887, 20 years after the law was enacted. While evaluating the constitutionality of a similar law in Myers v. United States (1926), the Supreme Court stated that the Tenure of Office Act was likely invalid.
Stanton and impeachment of Johnson
The Tenure of Office Act restricted the power of the president to suspend an officer while the Senate was not in session. At that time, Congress sat during a relatively small portion of the year. If, when the Senate reconvened, it declined to ratify the removal, the president would be required to reinstate the official.
In August 1867, with the Senate out of session, Johnson made his move against Stanton, suspending him pending the next session of the Senate. When the Senate convened on January 13, 1868, it refused to ratify the removal by a vote of 35–6. Notwithstanding the vote, on February 22, 1868, President Johnson attempted to replace Stanton with Lorenzo Thomas because he wanted, by such action, to create a case through which to challenge the legitimacy of the Act before the Supreme Court. Proceedings began within days to move toward the impeachment of Johnson, the first impeachment of a United States President. After a three-month trial, Johnson narrowly avoided removal from office by the Senate by a single vote. Stanton resigned in May 1868.
It was unclear whether Johnson had violated the Tenure of Office Act which led up to the impeachment. The act's phrasing was murky, and it was not clear whether his removal of Stanton (a holdover from the Lincoln administration whom Johnson had not appointed) violated the Act. While the Act, by its terms, applied to current office holders, it also limited the protection offered to Cabinet members to one month after a new president took office.
Later use
The act was amended on April 5, 1869, one month and one day after Republican president Ulysses S. Grant assumed the presidency. The revisions grew out of an attempt to completely repeal the 1867 Act. The measure to repeal passed the House of Representatives with only 16 negative votes but failed in the Senate. The new provisions were significantly less onerous, allowing the president to suspend office holders "in his discretion" and designate replacements while the Senate was in recess, subject only to confirmation of the replacements at the next session. The president no longer had to report his reasons for suspension to the Senate, and the Senate could no longer force reinstatement of suspended office holders.
Although Grant, in his first message to Congress, in December 1869, urged the repeal of even the revised act, it did not cause further problems until the election of Democrat Grover Cleveland in 1884. Under the spoils system it had long been accepted practice for the administration of a new party to replace current office holders with party faithful. Cleveland, a supporter of a civil service system, had promised to avoid wholesale replacements, vowing to replace incumbents only for cause. When he suspended several hundred office holders for cause, Senate committees requested information from cabinet members regarding the reasons for the suspensions, which Cleveland refused to provide. If he had simply said that the incumbents were being replaced for political reasons, the Senate would have complied, but Cleveland would not do so. When, in early 1886, the Senate as a whole demanded information regarding the conduct of the suspended U.S. Attorney for southern Alabama, Cleveland sent a message to Congress explaining his position opposing impingement of independence of the executive. Cleveland's replacement nominee was eventually confirmed when it was discovered that the suspended incumbent's term had expired in the meantime anyway.
See also
- Tenure of Office Act (1820)
- Decision of 1789, House of Representatives debate during the 1st Congress as to whether the president the power to remove officers of the United States at will.