Removals in Jacksonian America Through the Nineteenth Century

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Article II, Section 2, Clause 2:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

While the first six Presidents of the young Republic exercised the power of removal over Executive Branch officers on a somewhat limited basis, President Andrew Jackson replaced more officials than all Presidents before him combined.1 He instituted what was commonly known as the “spoils system,” wherein a new presidential administration would remove a large number of federal officials and replace them with supporters.2 Jackson embraced the Tenure of Office Act of 18203 and argued that “rotation in office” would improve government operations and serve a democratizing function that would curb the importance of privilege in governmental offices.4 Perhaps most famously, amidst conflict with Congress over the status of the Second Bank of the United States, Jackson dismissed Treasury Secretary William Duane.5 Duane had effectively refused to withdraw federal monies from the Bank as instructed by President Jackson, so he was replaced by Roger Taney, who did.6 A major fight with Congress ensued, and the Senate eventually passed a resolution in 1834 condemning Jackson’s actions.7 Congress did not, however, reverse Jackson’s decision or pass legislation preventing such action in the future. Following a change in party control, the Senate expunged the prior censure in 1837.8

Presidents that followed Jackson largely continued the practice of removing Executive Branch officers, although their stated reasons for doing so varied. For example, President Martin Van Buren, who succeeded Jackson in office, continued the spoils system, removing Executive Branch officers at will and replacing them with party loyalists.9 In contrast, the Nation’s ninth president, William Henry Harrison, who had defeated Van Buren in 1841 and became the first Whig elected president, pledged not to replace Executive Branch officers for political reasons. Though Harrison died within a month after his inauguration, his brief record is somewhat mixed on the matter.10 Harrison was succeeded by his Vice President John Tyler.11 Although Tyler initially vowed, consistent with Harrison’s Whig principles, not to remove Executive Branch officials for partisan reasons, he quickly did exactly that during his nearly four full years in office.12 Opinions from his Attorney General issued during Tyler’s time in office affirmed presidential removal authority in opinions that have informed subsequent practice and consideration of the removal power.13 Attorney General Hugh S. Legare argued that, following the Decision of 1789, the whole country had acquiesced to the power of the President to remove Executive Branch officers.14 One year later, he reaffirmed this conviction, noting that “Whatever I might have thought of the power of removal from office, if the subject were res integra, it is now too late to dispute the settled construction of 1789.” 15 Likewise, President Zachary Taylor, also a member of the Whig party, removed nearly two-thirds of the prior President James Polk’s appointees in his first year in office.16

The scope of the President’s removal authority was at the center of the first impeachment of a United States President.17 Congress on March 2, 1867 reauthorized (and amended), over the veto of President Andrew Johnson, the Tenure of Office Act.18 That law provided that Executive Branch officers who had been Senate-confirmed (as well as future such officers) were entitled to remain in their position until a replacement was confirmed.19 The law also provided that certain positions would retain their offices for the full term of the President who appointed them, plus one month thereafter, unless the Senate consented to their removal.20 Johnson subsequently fired his Secretary of War Edwin Stanton without Senate approval. On February 24, 1868, the House voted to impeach President Johnson.21 An important point of contention at the trial in the Senate was whether the Tenure of Office Act protected Stanton at all due to his appointment by President Abraham Lincoln, rather than President Johnson.22 The Senate ultimately failed to convict President Johnson by one vote on three different articles, and it failed to vote on the remaining eight.23 The Tenure of Office Act of 1867 was amended in 186924 and requirements concerning Senate approval for removal were repealed in 1887.25

By the end of the nineteenth century, the Supreme Court affirmed that the President enjoyed the sole power of removal over Executive Branch officers.26 In the 1897 case of Parsons v. United States, the Court concluded that the President was authorized to remove a U.S. attorney, even though the Tenure of Office Act of 1820 provided that the term of appointment was four years.27 The Court reasoned that the Decision of 1789 and consistent government practice since indicated that the President enjoys the power of removal.28 It thus interpreted the statute to establish that a term of office expired after four years, but did not bar the President from removing a U.S. attorney before that time.29 Likewise, in 1903, the Court in Shurtleff v. United States reaffirmed this understanding of the President’s power.30 That case concerned a suit for back pay by a Senate-confirmed Executive Branch official who was removed without notice or a hearing. The statute establishing the officer’s position provided that the President could remove him “for inefficiency, neglect of duty, or malfeasance in office.” 31 The Court concluded that while notice and a hearing might be required when an officer is removed for the reasons specified in the statute, the President also had authority to remove the officer for other reasons entirely and, in those circumstances, was not required to provide such procedural protection.32 The Court thus rejected the suit because the President removed the officer for reasons other than those mentioned in the statute.33

1: Daniel Walker Howe, What Hath God Wrought: The Transformation of America, 1815–1848 at 331–34 (2007); Michael J. Gerhardt, The Federal Appointments Process 52–53 (2003) [hereinafter Gerhardt, Appointments]; Carl R. Fish, The Civil Service and the Patronage 74 (1905). It appears that although President Jackson removed more officers than all his predecessors had combined, due to the smaller size of government at the time, President Jefferson removed a larger percentage of federal officers. Paul P. Van Riper, History of the United States Civil Service 30, 34–36 (1958); Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive During the First Half-Century, 47 Case W. Res. L. Rev. 1451, 1533 (1997).
2: Howe, supra note 1, at 333–34; Arthur Schlesinger, Jr., The Age of Jackson 46–47 (1945).
3: Gerhardt, Appointments, supra note 1, at 52–53.
4: Andrew Jackson, First Annual Message (Dec. 8, 1829), in 3 A Compilation of the Messages and Papers of the Presidents 309, 310 (James D. Richardson ed., 1897); Calabresi & Yoo, supra note 1, at 1478–95, 1531–32; Howe, supra note 1, at 333–34. It appears that Presidents Jefferson and Monroe also embraced rotation in office. Michael J. Gerhardt, Forgotten Presidents 32 (2013) [hereinafter Gerhardt, Forgotten].
5: Howe, supra note 1, at 373–92; Calabresi & Yoo, supra note 1, at 1538–59.
6: Howe, supra note 1, at 388.
7: 10 Reg. Deb. 58 (1833); 10 Reg. Deb. 1187 (1834). See Claude G. Bowers, The Party Battles of the Jackson Period 330 (1965).
8: 13 Reg. Deb. 504–05 (1837); Calabresi & Yoo, supra note 1, at 1558–59; see U.S. Sen., Party Division, https://www.senate.gov/history/partydiv.htm (last visited June 27, 2022).
9: Gerhardt, Forgotten, supra note 4, at 18–19; Leonard D. White, The Jacksonians: A Study in Administrative History, 1829–1861, at 309 (1954).
10: Gerhardt, Forgotten, supra note 4, at 31–33; White, supra note 9, at 311.
11: Gerhardt, Forgotten, supra note 4, at 37–45. Tyler was initially a member of the Democratic party, but left and was elected on the newly-formed Whig ticket. He was expelled from the Whigs after vetoing a legislative bill. Id.
12: Gerhardt, Forgotten, supra note 4, at 50–51.
13: Gerhardt, Forgotten, supra note 4, at 50–51.
14: Power of President to Fill Vacancies, 3 Op. Att’ys Gen. 673, 673–76 (1841).
15: Military Power of the President to Dismiss From Serv., 4 Op. Att’ys Gen. 1, 1–2 (1842).
16: Gerhardt, Forgotten, supra note 4, at 74; Gerhardt, Appointments, supra note 1, at 52–55.
17: See ArtII.S4.4.4 President Andrew Johnson and Impeachable Offenses.
18: Tenure of Office Act, Pub. L. No. 39-154, ch. 154, 14 Stat. 430 (1867).
19: Id.
20: Id.
21: Cong. Globe, 40th Cong. 1400 (1868).
22: William H. Rehnquist, Grand Inquests: The Historic impeachments of Justice Samuel Chase and President Andrew Johnson 221 (1992).
23: 3 Hinds’ Precedents of the House of Representatives § 2443 (1907); see Rehnquist, supra note 22, at 234–35.
24: See Act of Apr. 5, 1869, ch. 10, §§ 1–2, Pub. L. No. 41-10, 16 Stat. 6, 6–7. See Rev. Stat. 1767 (1875) ( “Every person holding any civil office . . . by and with the advice and consent of the Senate . . . shall be entitled to hold such office during the term for which he was appointed, unless” removed with Senate consent or replaced with Senate consent).
25: Act of Mar. 3, 1887, ch. 353, Pub. L. No. 49-354, 24 Stat. 500.
26: Parsons v. United States, 167 U.S. 324, 338–43 (1897). The Court in 1886 affirmed the authority of Congress to restrict the removal of inferior officers by the head of a department for cause. United States v. Perkins, 116 U.S. 483, 485 (1886).
27: Parsons, 167 U.S. at 338–43.
28: Id. at 338–39.
29: Id.
30: 189 U.S. 311 (1903).
31: Id. at 313.
32: Id. at 315–19.
33: Id.