Are there lessons to be learned from the Johnson Impeachment?

[PatYoung]

The 1868 impeachment of Andrew Johnson used to be taught as a pure disaster. It was a political use of a Constitutional power for impermissible ends. Now there is a reevaluation underway which sees it as having successfully clipped the wings of an erring president. What do you think?

 

[Nitti]

Interesting thought as it relates to the past 50 years.

 

[PatYoung]

Here is how Cass Sunstein discusses the Johnson impeachment:

"Andrew Johnson was impeached in 1868 for just one reason: he fired Edwin Stanton, the secretary of war (now called the secretary of defense), and he tried to replace Stanton with someone he preferred. You might well ask: Isn’t the president allowed to choose the Secretary of Defense? Doesn’t he get to fire members of his own cabinet? Excellent questions. You will remember that the framers created a unitary presidency. That is generally taken to mean that under the Constitution, the president can get rid of members of his own cabinet. Congress has no authority to limit that power. That’s certainly what Johnson believed. And ultimately, the Supreme Court agreed with him. 24 Nonetheless, Congress enacted a law that it called the Tenure of Office Act, which was specifically designed to forbid the president from removing certain executive officials, including the secretary of war, without the Senate’s approval. The law said that those officials “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 consent of the Senate.” 25 Believing that the Tenure of Office Act was unconstitutional, Johnson ignored it. So the House impeached him. Of course there was a dramatic political background. Johnson had become president only because of the assassination of Abraham Lincoln.

After the Civil War, the nation was embroiled in a debate about how to reconstruct the defeated South, and how to reunify the nation. Although Johnson was from the South, many in a group within the Republican Party, sometimes described as the Radical Republicans, hoped and believed that he would adopt an aggressive set of programs during Reconstruction, designed above all to protect and assist the newly freed slaves. Johnson badly disappointed them. He proved far more cautious than they expected, and as they saw it, far more solicitous of the defeated South. Emboldened by electoral success, the Radical Republicans enacted the Tenure of Office Act specifically to protect Stanton, who generally shared their views. More than that, the Tenure of Office Act was designed to threaten and to trigger impeachment. It explicitly said that if the president violated it, he would be committing a “high misdemeanor.” Gosh. As far as I am aware, nothing like that has ever happened in American history, either before or since. Johnson paid no attention. In response, the House passed no fewer than eleven articles of impeachment. They’re endless as well as redundant...

Johnson had a good-faith argument that he was acting in accordance with his constitutional authority. 27 For those who sought to impeach Johnson, things were even worse. As I have noted, the Supreme Court eventually ruled that Johnson was exactly right on the Constitution, which forbids Congress from requiring the president to obtain the Senate’s consent before firing members of his cabinet. 28 In the House, the vote against Johnson was overwhelming: 126 to 47.29 Johnson narrowly avoided conviction in the Senate, whose 35 to 19 vote to convict fell just one short of a two-thirds majority. 30 All nine Democrats voted Not Guilty; just ten of the 45 Republicans joined them. Johnson was a terrible president, but his impeachment violated the constitutional plan."

From: Sunstein, Cass R.. Impeachment: A Citizen’s Guide (p. 106). Harvard University Press. Kindle Edition.

 

[Jim Klag]

The 1868 impeachment of Andrew Johnson used to be taught as a pure disaster. It was a political use of a Constitutional power for impermissible ends. Now there is a reevaluation underway which sees it as having successfully clipped the wings of an erring president. What do you think?

I think it was a purely unconstitutional power grab by Congress against an unpopular president who was merely exercising his prerogative to make up his cabinet with personnel of his choice. The Senate may advise and consent on the appointment of Stanton's replacement after Johnson legally fired him, but they may not impose a cabinet secretary on the president. Senate consent to Stanton's original appointment did not give them any authority beyond that consent and the normal Congressional oversight and funding of his department. A cool what-if would be what would have happened had that one more impeachment vote been found followed by SCOTUS finding Congress's cause of action did not rise to the level of impeachable offenses and their interference in Johnson's executive prerogative to be absolutely unconstitutional. The Tenure In Office Act, on which the impeachment was based, was repealed and would surely have been found to be unconstitutional.

 

[PatYoung]

The 1868 impeachment of Andrew Johnson used to be taught as a pure disaster. It was a political use of a Constitutional power for impermissible ends. Now there is a reevaluation underway which sees it as having successfully clipped the wings of an erring president. What do you think?

I think it was a purely unconstitutional power grab by Congress against an unpopular president who was merely exercising his prerogative to make up his cabinet with personnel of his choice. The Senate may advise and consent on the appointment of Stanton's replacement after Johnson legally fired him, but they may not impose a cabinet secretary on the president. Senate consent to Stanton's original appointment did not give them any authority beyond that consent and the normal Congressional oversight and funding of his department. A cool what-if would be what would have happened had that one more impeachment vote been found followed by SCOTUS finding Congress's cause of action did not rise to the level of impeachable offenses and their interference in Johnson's executive prerogative to be absolutely unconstitutional. The Tenure In Office Act, on which the impeachment was based, was repealed and would surely have been found to be unconstitutional.

Sorry, but how can the SCOTUS find an impeachment and conviction unconstitutional? Are you suggesting that the court could reinstate the president. I don't think that is in the Constitutional scheme.

 

[Jim Klag]

The 1868 impeachment of Andrew Johnson used to be taught as a pure disaster. It was a political use of a Constitutional power for impermissible ends. Now there is a reevaluation underway which sees it as having successfully clipped the wings of an erring president. What do you think?

I think it was a purely unconstitutional power grab by Congress against an unpopular president who was merely exercising his prerogative to make up his cabinet with personnel of his choice. The Senate may advise and consent on the appointment of Stanton's replacement after Johnson legally fired him, but they may not impose a cabinet secretary on the president. Senate consent to Stanton's original appointment did not give them any authority beyond that consent and the normal Congressional oversight and funding of his department. A cool what-if would be what would have happened had that one more impeachment vote been found followed by SCOTUS finding Congress's cause of action did not rise to the level of impeachable offenses and their interference in Johnson's executive prerogative to be absolutely unconstitutional. The Tenure In Office Act, on which the impeachment was based, was repealed and would surely have been found to be unconstitutional.

Sorry, but how can the SCOTUS find an impeachment and conviction unconstitutional? Are you suggesting that the court could reinstate the president. I don't think that is in the Constitutional scheme.

Sorry. SCOTUS finding the Tenure In Office Act unconstitutional. Chase had to serve as judge in the impeachment trial, but it is not impossible for the whole SCOTUS to decide later that the cause of action was insufficient for impeachment if the cause of action was based on an unconstitutional act of Congress. If ever there was an illegal ex-post-facto law, the Tenure In Office Act was it.

 

[Andersonh1]

It was a power grab by Congress. It's no more complicated than that. The Radical Republicans in charge did not like how Andrew Johnson was handling Reconstruction and created a pretext to get rid of him by passing a law that violated the President's prerogatives as chief executive, solely so they could bring up impeachment charges when he "broke" the law.

 

[PatYoung]

The 1868 impeachment of Andrew Johnson used to be taught as a pure disaster. It was a political use of a Constitutional power for impermissible ends. Now there is a reevaluation underway which sees it as having successfully clipped the wings of an erring president. What do you think?

I think it was a purely unconstitutional power grab by Congress against an unpopular president who was merely exercising his prerogative to make up his cabinet with personnel of his choice. The Senate may advise and consent on the appointment of Stanton's replacement after Johnson legally fired him, but they may not impose a cabinet secretary on the president. Senate consent to Stanton's original appointment did not give them any authority beyond that consent and the normal Congressional oversight and funding of his department. A cool what-if would be what would have happened had that one more impeachment vote been found followed by SCOTUS finding Congress's cause of action did not rise to the level of impeachable offenses and their interference in Johnson's executive prerogative to be absolutely unconstitutional. The Tenure In Office Act, on which the impeachment was based, was repealed and would surely have been found to be unconstitutional.

Sorry, but how can the SCOTUS find an impeachment and conviction unconstitutional? Are you suggesting that the court could reinstate the president. I don't think that is in the Constitutional scheme.

Sorry. SCOTUS finding the Tenure In Office Act unconstitutional. Chase had to serve as judge in the impeachment trial, but it is not impossible for the whole SCOTUS to decide later that the cause of action was insufficient for impeachment if the cause of action was based on an unconstitutional act of Congress. If ever there was an illegal ex-post-facto law, the Tenure In Office Act was it.

So where in the Constitution does it say that impeachment and conviction of the president is reviewable you the courts?

 

[Jim Klag]

The 1868 impeachment of Andrew Johnson used to be taught as a pure disaster. It was a political use of a Constitutional power for impermissible ends. Now there is a reevaluation underway which sees it as having successfully clipped the wings of an erring president. What do you think?

I think it was a purely unconstitutional power grab by Congress against an unpopular president who was merely exercising his prerogative to make up his cabinet with personnel of his choice. The Senate may advise and consent on the appointment of Stanton's replacement after Johnson legally fired him, but they may not impose a cabinet secretary on the president. Senate consent to Stanton's original appointment did not give them any authority beyond that consent and the normal Congressional oversight and funding of his department. A cool what-if would be what would have happened had that one more impeachment vote been found followed by SCOTUS finding Congress's cause of action did not rise to the level of impeachable offenses and their interference in Johnson's executive prerogative to be absolutely unconstitutional. The Tenure In Office Act, on which the impeachment was based, was repealed and would surely have been found to be unconstitutional.

Sorry, but how can the SCOTUS find an impeachment and conviction unconstitutional? Are you suggesting that the court could reinstate the president. I don't think that is in the Constitutional scheme.

Sorry. SCOTUS finding the Tenure In Office Act unconstitutional. Chase had to serve as judge in the impeachment trial, but it is not impossible for the whole SCOTUS to decide later that the cause of action was insufficient for impeachment if the cause of action was based on an unconstitutional act of Congress. If ever there was an illegal ex-post-facto law, the Tenure In Office Act was it.

So where in the Constitution does it say that impeachment and conviction of the president is reviewable you the courts?

It doesn't say anything about it being reviewable - but it doesn't say anything about SCOTUS reviewing any congressional act and yet SCOTUS decided under John Marshall that they had review power and made it stick. After all, the power of judicial review is an implied power, not specifically delineated in Article 3, section 2. They do however have appellate Jurisdiction in all trials and impeachment is most certainly a trial. If SCOTUS can butt in to cases like Bush v. Gore (the constitution explicitly grants the choosing of presidential electors to the state legislatures - not SCOTUS), they can certainly give themselves appellate Jurisdiction over an impeachment trial. Who would stop them?

 

[jgoodguy]

IMHO Impeachment is political and not reviewable.  

Constitutionality

In 1926, a similar law (though not dealing with Cabinet secretaries) was ruled unconstitutional by the United States Supreme Court in the case of Myers v. United States, which affirmed the ability of the President to remove a Postmaster without Congressional approval. In reaching that decision, the Supreme Court stated in its majority opinion (though in dicta), "that the Tenure of Office Act of 1867, insofar as it attempted to prevent the President from removing executive officers who had been appointed by him by and with the advice and consent of the Senate, was invalid".[5]

Tenure of Office Act of 1867 was repealed on March 3, 1887 long before the 1926 case.  The use of dicta in the quoted paragraph is an opinion outside of law with no legal effect.  

What we end up with is that the Tenure of Office Act of 1867 was never adjudicated as not Constitutional.  We have a nonbinding opinion that it was not Constitutional but that is just interesting.   At the time the US operated under the spoils system where the President gave offices to reward supporters.  In that time and place, the act might pass Constitutional muster while in 1926 after 40 years of Civil Service it might not.  Chase was an ambitious politician as well as judge, his relations with the radical republicans was not good.  There are a lot of moving parts of a what-if of such a court case.  

 

[Kirk's Raider's]

The 1868 impeachment of Andrew Johnson used to be taught as a pure disaster. It was a political use of a Constitutional power for impermissible ends. Now there is a reevaluation underway which sees it as having successfully clipped the wings of an erring president. What do you think?

In a sense even if President Johnson was impeached it really wouldn't make a difference as far as the progression of African American Civil Rights goes.
Even when President Grant assumed two terms the white supremacist paramilitaries more or less had free reign. There was very limited funding for the US Army to combat racist paramilitaries. During the Kirk-Holden War in North Carolina federal troops were not even involved in the fighting just former Union  Col. Kirk who recruited old men and juvenile delinquents vs the KKK.

Once President Garfield took over it was game over for Civil Rights. Yes President Johnson was a terrible person but the American people had no desire for a long term counterinsurgency campaign to ensure equal rights for all.
Kirk's Raider's

 

[Al Mackey]

IMHO Impeachment is political and not reviewable.  

I agree. Impeachment is a political remedy for a president who is out of control. A president convicted in the Senate is simply removed from office, not imprisoned. There would have to be a separate criminal trial in order for the courts to have a say in what happens to that former president.

 

[PatYoung]

IMHO Impeachment is political and not reviewable.  

I agree. Impeachment is a political remedy for a president who is out of control. A president convicted in the Senate is simply removed from office, not imprisoned. There would have to be a separate criminal trial in order for the courts to have a say in what happens to that former president.

Pretty much my view on it as well. The Constitution does not set up a means of court review of either the impeachment by the House or the trial by the senate.

 

[Carmel]

If I were king I'd have everyone put quotation marks around the word "radical" when it comes to the Republicans of the late 1860s. While they were referred to that way then, what they did at the time seems mere decency now.

It was an extraordinary event that in a time where racism was the norm and women's rights a laughable dream a critical mass of such men were elected. It was a miracle that they held it together long enough to pass the Reconstruction Amendments, with a strong enough
majority to override Johnson's vetos.

Johnson was definitely on the wrong side of history, was wrong to use the veto so often, wrong to attempt to overturn the results of the war. As an unelected president he had no business using his authority that way. Congress did the right thing in attempting to limit the damage he could do. Although on the surface it seems ridiculous to impeach over a seemingly bizarre act (Tenure of Office), limiting the President was really what the argument was about.

The tragedy was the breakdown of the consensus that brought the Reconstruction Acts and the erosion of the willingness of Congress to do the right thing.

 

[PatYoung]

If I were king I'd have everyone put quotation marks around the word "radical" when it comes to the Republicans of the late 1860s. While they were referred to that way then, what they did at the time seems mere decency now.

It was an extraordinary event that in a time where racism was the norm and women's rights a laughable dream a critical mass of such men were elected. It was a miracle that they held it together long enough to pass the Reconstruction Amendments, with a strong enough
majority to override Johnson's vetos.

Johnson was definitely on the wrong side of history, was wrong to use the veto so often, wrong to attempt to overturn the results of the war. As an unelected president he had no business using his authority that way. Congress did the right thing in attempting to limit the damage he could do. Although on the surface it seems ridiculous to impeach over a seemingly bizarre act (Tenure of Office), limiting the President was really what the argument was about.

The tragedy was the breakdown of the consensus that brought the Reconstruction Acts and the erosion of the willingness of Congress to do the right thing.

Well said.