Ever Hear of Tenure of Office Act of 1867?

What if President Trump should decide special prosecutor Robert Mueller is abusing his authority? That Mueller’s Russian meddling investigation is hindering the president’s duty to faithfully execute all the other laws? Can President Trump “fire” or remove him?

The simple answer is, “Yes.”

Article II of the U.S. Constitution gives the president power to appoint the “principal officers” of the U.S., subject to the advice and consent of the Senate. It is silent, however, as to the president’s power to remove those principal officers.


What if Congress were to pass a law providing that Mueller cannot be removed without the advice and consent of the Senate? Or without the approval of the courts?

If the president has the power of appointment, the president has the absolute constitutional power to remove that executive branch officer without the consent of the Senate, even though the officer’s appointment was subject to Senate approval.

In 1926, in the case of Myers v. U.S., the U.S. Supreme Court decided that issue.

Frank S. Myers was a first-class postmaster, appointed under an act of Congress which provided “postmasters of the first, second and third classes shall be appointed and may be removed by the president by and with the advice and consent of the Senate ...”

President Wilson dismissed Myers from his post. The Senate did not consent to the president’s removal. Myers sued.

The court framed the issue as follows:

“This case presents the question whether, under the Constitution, the president has the exclusive power of removing executive officers of the United States whom he has appointed by and with the advice and consent of the Senate.”

The court engaged in an exhaustive historical examination of the issue that included analysis of legislation, beginning with the 1789 Bill to Establish a Department of Foreign Affairs, considered by the First Congress, which would have allowed the president unfettered discretion to remove any officer conducting the foreign affairs of the nation.

It concluded with examination of the 1867 Tenure of Office Act which barred President Andrew Johnson from removing Secretary of War Edward Stanton without Senate consent. (Stanton refused to support President Andrew Johnson’s lenient plan to reconstruct the South, and instead supported the rigorous congressional Reconstruction of the radical Republicans).

The court concluded:

“When, on the merits, we find our conclusion strongly favoring the view which prevailed in the First Congress, we have no hesitation in holding that conclusion to be correct, and it therefore follows that the Tenure of Office Act of 1867, insofar as it attempted to prevent the president from removing an executive officer who had been appointed by him by and with the advice and consent of the Senate, was invalid, and that subsequent legislation of the same effect was equally so.


“For the reasons given, we must therefore hold that the provision of the law of 1867, by which the unrestricted power of removal of first-class postmasters is denied to the president, is in violation of the Constitution, and invalid.”

The court’s holding was based squarely on the 1789 remarks of James Madison and his supporters during the debate on the Bill to Establish a Department of Foreign Affairs.

Mr. Madison, in the House discussion, dwelt at length upon the necessity for construing Article II to give the president the sole power of removal in his responsibility for the conduct of the executive branch, and re-enforced this by emphasizing his duty expressly declared in the third section of the article to “take care that the laws be faithfully executed.”

According to Madison, “The vesting of the executive power in the president was essentially a grant of the power to execute the laws. But the president, alone and unaided, could not execute the laws. He must execute them by the assistance of subordinates.

“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.”

Posted: QCOline.com August 10, 2017
Copyright 2017, John Donald O'Shea