The general object of the Tenure-of-Office Act was to protect civil
officers from removal without the advice and consent of the Senate; and
it was made in express terms applicable to “every person holding any
civil office to which he has been appointed by and with the advice and
consent of the Senate.” To this provision, so broad in character, was
appended a proviso:--
“_Provided_, 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.”[198]
As this general protection from removal without the advice and consent
of the Senate might be productive of embarrassment during the recess of
the Senate, it was further provided, in a second section, that, during
such recess, any person, except judges of the United States courts, may
be suspended from office by the President on reasons assigned, which it
is made his duty to report to the Senate within twenty days after its
next meeting, and if the Senate concurs, then the President may remove
the officer and appoint a successor; but if the Senate does not concur,
then the suspended officer shall forthwith resume his functions.
On this statute two questions arise: first, as to its
constitutionality, and, secondly, as to its application to Mr. Stanton,
so as to protect him from removal without the advice and consent of the
Senate.
It is impossible not to confess in advance that both have been already
practically settled. The statute was passed over the veto of the
President by two thirds of both Houses, who thus solemnly united in
declaring its constitutionality. Then came the suspension of Mr.
Stanton, and his restoration to office by a triumphant vote of the
Senate, being no less than thirty-five to six,--thus establishing not
only the constitutionality of the statute, but also its protecting
application to Mr. Stanton. And then came the resolution of the Senate,
adopted, after protracted debate, on the 21st February, by a vote
of twenty-eight to six, declaring, that, under the Constitution and
laws of the United States, the President has no power to remove the
Secretary of War and to designate any other officer to perform the
duties of that office _ad interim_; thus for the third time affirming
the constitutionality of the statute, and for the second time its
protecting application to Mr. Stanton. There is no instance in our
history where there has been such a succession of votes, with such
large majorities, declaring the conclusions of the Senate, and fixing
them beyond recall. “Thrice is he armed that hath his quarrel just”;
but the Tenure-of-Office Act is armed _thrice_, by the votes of the
Senate. The apologists of the President seem to say of these solemn
votes, “Thrice the brinded cat hath mewed”; but such a threefold record
cannot be treated with levity.
The question of the constitutionality of this statute complicates
itself with the power of removal under the National Constitution; but I
shall not consider the latter question at this stage. It will naturally
present itself when we consider the power of removal under the
National Constitution, which has been claimed by the President. For the
present I assume the constitutionality of the statute.