The New Tenure of Office Act

When Abraham Lincoln was assassinated, a chain of events was set in motion that has relevance to our current political climate. Lincoln, with an eye on post-war reconstruction, hoped to heal the wounds of secession so he had chosen an odd man to serve as his veep; a Southern Democrat named Andrew Johnson. A senator from Tennessee, Johnson refused to walk out of the Capitol when his state seceded from the Union, and he continued to serve in office -- one of the few Southern politicians to remain. Lincoln knew he needed to offer an olive branch to the South, and he knew he needed a Southerner to sell his reconstruction plan.

But Lincoln was assassinated and Johnson became President, a Democrat and Southerner taking charge of a country that just defeated most of his own party. The Republicans were furious, and did not want to give up power. Johnson's impeachment was inevitable.

Johnson moved quickly to impose Lincoln's own plan for the reunification of the U.S. but Congress refused to seat the Southern delegates. A particular thorn in his side was Lincoln's holdover Secretary of War Edwin M. Stanton, a radical Republican who wanted to punish the South. But Congress passed a law called the Tenure of Office Act on March 2, 1867 that said that any cabinet member approved by the Senate had to be retained. This was flagrantly unconstitutional but the Republicans passed it anyway.

Emboldened by the Tenure of Office Act, Stanton openly opposed the president, who fired him. Congress ordered his reinstatement but Johnson again fired him, leading to America's first impeachment.

Of the 12 Articles of Impeachment against Johnson only his violation of the Tenure of Office Act actually constituted a "high Crimes and misdemeanors" designation. (He was accused of insulting the dignity of Congress, for example, something easily and accurately done then as now.) Johnson was impeached and survived by only one single vote -- 35 for conviction to 19 against.

The Tenure of Office Act was repealed in stages, and completely repealed in 1887. The U.S. Supreme Court largely ruled it unconstitutional in the case of Meyers v. United States 1926.

The Supreme Court stated in the dicta of their opinion in that case:


"It is very clear from this history that the exact question which the House voted upon was whether it should recognize and declare the power of the President under the Constitution to remove the Secretary of Foreign Affairs without the advice and consent of the Senate. That was what the vote was taken for. Some effort has been made to question whether the decision carries the result claimed for it, but there is not the slightest doubt. after an examination of the record, that the vote was, and was intended to be, a legislative declaration that the power to remove officers appointed by the President and the Senate vested in the President alone, and until the Johnson impeachment trial in 1868 its meaning was not doubted, even by those who questioned its soundness" …

As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that as part of his executive power he should select those who were to act for him under his direction in the execution of the laws. The further implication must be, in the absence of any express limitation respecting removals, that as his selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for whom he cannot continue to be responsible."

Later in the opinion SCOTUS actually declares the Tenure of Office Act illegal.

Which brings us to the current political situation. There are not one but two bills in the Senate -- both proposed by Republicans -- to make it illegal for Donald J. Trump to fire Special Counsel Robert Mueller. One bill, sponsored by South Carolina's Foghorn Leghorn senator and Mini-McCain Lindsay Graham, the other by RINO Chamber of Commerce honorary member and pro-high heel-wearing-in-the-military man Thom Tillis of North Carolina. (What is in the water in the Carolinas? Maybe they should get rid of the lead pipes down thar!) Both make it illegal for the President to fire an employee of the Department of Justice without "cause" to be determined by a panel of judges.

This is a clear violation of Separation of Powers. Congress may investigate the matter itself, but they cannot force Mr. Trump to conduct an investigation of himself and force him to retain hostile personnel. And there is no underlying crime being investigated by the President or his staff, but rather a national security issue. The President has an absolute legal right to fire Mueller when he sees fit.

Congressional Republicans have been waging a quiet war on their own President. The Senate voted unanimously to stay in session thus denying President Trump the power to make recess appointments - and they themselves have refused to move his appointments forward. They prevented Trump from even using private funding to build a border wall in a previous deal. They refused to even repeal Obamacare, the cornerstone of every Republican campaign promise. And they have gone along with the Democrats with these investigations, which the GOP knows full well are purely political. See, they want Trump to fail; he shows that there is a different way to do things and he has exposed the nudity of the Imperium.

No doubt the GOP sees these polls showing Trump at record low approval numbers. Yeah, just like before the election.

Former Reagan budget director David Stockman thinks Trump is Nixon. He's dead wrong; Trump has the ability to circumvent the gatekeepers in the media and the Washington establishment, something not true of Nixon. Nixon was a true swamp critter, not a maverick outsider (unlike John McCain, whose only claim to “maverick” status is his willingness to stab his friends in the back.) And Trump's policies are poised to reignite the American economy, something that Nixon's supply-side thinking could not do. Oh, and Nixon was unfairly tarnished by Vietnam. If Trump ends up a wartime President, it will have been thrust upon him, and the public knows it. (Hat tip; Dana Mathewson.)

The reality is that the Trump Presidency more resembles Andrew Johnson than Nixon, but there are huge differences. Johnson wasn't elected, while Mr. Trump won fair and square and is beloved by his base. He is the guy trying to restore the franchise to a forgotten segment of Americans, much like Johnson did the South. Nixon was seen, and probably correctly, as a cynic in love with power for its own sake. He loved “the game.” There will be a terrible political price to pay if the GOP allows Trump to be brought down. In fact, it will probably spell the end of the Republican Party as the base will walk. Lindsay Graham and Thom Tillis are playing with fire.

Or rather with ABC gum in bringing back the Tenure of Office Act. It was a terrible idea back then and it has not improved with age.

Read more from Tim and friends at www.tbirdnow.mee.nu

When Abraham Lincoln was assassinated, a chain of events was set in motion that has relevance to our current political climate. Lincoln, with an eye on post-war reconstruction, hoped to heal the wounds of secession so he had chosen an odd man to serve as his veep; a Southern Democrat named Andrew Johnson. A senator from Tennessee, Johnson refused to walk out of the Capitol when his state seceded from the Union, and he continued to serve in office -- one of the few Southern politicians to remain. Lincoln knew he needed to offer an olive branch to the South, and he knew he needed a Southerner to sell his reconstruction plan.

But Lincoln was assassinated and Johnson became President, a Democrat and Southerner taking charge of a country that just defeated most of his own party. The Republicans were furious, and did not want to give up power. Johnson's impeachment was inevitable.

Johnson moved quickly to impose Lincoln's own plan for the reunification of the U.S. but Congress refused to seat the Southern delegates. A particular thorn in his side was Lincoln's holdover Secretary of War Edwin M. Stanton, a radical Republican who wanted to punish the South. But Congress passed a law called the Tenure of Office Act on March 2, 1867 that said that any cabinet member approved by the Senate had to be retained. This was flagrantly unconstitutional but the Republicans passed it anyway.

Emboldened by the Tenure of Office Act, Stanton openly opposed the president, who fired him. Congress ordered his reinstatement but Johnson again fired him, leading to America's first impeachment.

Of the 12 Articles of Impeachment against Johnson only his violation of the Tenure of Office Act actually constituted a "high Crimes and misdemeanors" designation. (He was accused of insulting the dignity of Congress, for example, something easily and accurately done then as now.) Johnson was impeached and survived by only one single vote -- 35 for conviction to 19 against.

The Tenure of Office Act was repealed in stages, and completely repealed in 1887. The U.S. Supreme Court largely ruled it unconstitutional in the case of Meyers v. United States 1926.

The Supreme Court stated in the dicta of their opinion in that case:


"It is very clear from this history that the exact question which the House voted upon was whether it should recognize and declare the power of the President under the Constitution to remove the Secretary of Foreign Affairs without the advice and consent of the Senate. That was what the vote was taken for. Some effort has been made to question whether the decision carries the result claimed for it, but there is not the slightest doubt. after an examination of the record, that the vote was, and was intended to be, a legislative declaration that the power to remove officers appointed by the President and the Senate vested in the President alone, and until the Johnson impeachment trial in 1868 its meaning was not doubted, even by those who questioned its soundness" …

As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that as part of his executive power he should select those who were to act for him under his direction in the execution of the laws. The further implication must be, in the absence of any express limitation respecting removals, that as his selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for whom he cannot continue to be responsible."

Later in the opinion SCOTUS actually declares the Tenure of Office Act illegal.

Which brings us to the current political situation. There are not one but two bills in the Senate -- both proposed by Republicans -- to make it illegal for Donald J. Trump to fire Special Counsel Robert Mueller. One bill, sponsored by South Carolina's Foghorn Leghorn senator and Mini-McCain Lindsay Graham, the other by RINO Chamber of Commerce honorary member and pro-high heel-wearing-in-the-military man Thom Tillis of North Carolina. (What is in the water in the Carolinas? Maybe they should get rid of the lead pipes down thar!) Both make it illegal for the President to fire an employee of the Department of Justice without "cause" to be determined by a panel of judges.

This is a clear violation of Separation of Powers. Congress may investigate the matter itself, but they cannot force Mr. Trump to conduct an investigation of himself and force him to retain hostile personnel. And there is no underlying crime being investigated by the President or his staff, but rather a national security issue. The President has an absolute legal right to fire Mueller when he sees fit.

Congressional Republicans have been waging a quiet war on their own President. The Senate voted unanimously to stay in session thus denying President Trump the power to make recess appointments - and they themselves have refused to move his appointments forward. They prevented Trump from even using private funding to build a border wall in a previous deal. They refused to even repeal Obamacare, the cornerstone of every Republican campaign promise. And they have gone along with the Democrats with these investigations, which the GOP knows full well are purely political. See, they want Trump to fail; he shows that there is a different way to do things and he has exposed the nudity of the Imperium.

No doubt the GOP sees these polls showing Trump at record low approval numbers. Yeah, just like before the election.

Former Reagan budget director David Stockman thinks Trump is Nixon. He's dead wrong; Trump has the ability to circumvent the gatekeepers in the media and the Washington establishment, something not true of Nixon. Nixon was a true swamp critter, not a maverick outsider (unlike John McCain, whose only claim to “maverick” status is his willingness to stab his friends in the back.) And Trump's policies are poised to reignite the American economy, something that Nixon's supply-side thinking could not do. Oh, and Nixon was unfairly tarnished by Vietnam. If Trump ends up a wartime President, it will have been thrust upon him, and the public knows it. (Hat tip; Dana Mathewson.)

The reality is that the Trump Presidency more resembles Andrew Johnson than Nixon, but there are huge differences. Johnson wasn't elected, while Mr. Trump won fair and square and is beloved by his base. He is the guy trying to restore the franchise to a forgotten segment of Americans, much like Johnson did the South. Nixon was seen, and probably correctly, as a cynic in love with power for its own sake. He loved “the game.” There will be a terrible political price to pay if the GOP allows Trump to be brought down. In fact, it will probably spell the end of the Republican Party as the base will walk. Lindsay Graham and Thom Tillis are playing with fire.

Or rather with ABC gum in bringing back the Tenure of Office Act. It was a terrible idea back then and it has not improved with age.

Read more from Tim and friends at www.tbirdnow.mee.nu

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