(February 24, 1868)
Though steps to impeach President Johnson failed in December 1867, efforts in the House of Representatives to remove him from office resumed in February when he again defied the Tenure of Office Act by dismissing Secretary of War Edwin M. Stanton (1814–1869). Johnson appointed General Lorenzo Thomas (1804–1875), adjutant general of the army, Secretary of War ad interim. The New York Times concurred with House Republicans that Johnson had defiantly violated the law but pointed out that he had done so intentionally to test its constitutionality. The U.S. Supreme Court, the newspaper maintained, not the U.S. Senate, was the appropriate venue to determine whether Johnson had acted unconstitutionally.
The Republican Party in Congress seems at last to be unanimous in favor of impeachment. Those who have hitherto been most conservative in this matter seem now most zealous and demonstrative on the other side. There can be very little doubt that the President will be impeached by the House and sent before the Senate for trial—the specific misdemeanor for which he is arraigned being the violation of the Tenure of Office Law, in the removal of Secretary STANTON and the appointment of Gen. [Lorenzo] THOMAS in his place ad interim.
There can be no doubt, we presume, that the President’s action is in violation of the law. The first section declares that “every person holding any civil office to which he has been appointed by and with the advice and consent of the Senate, is and shall be entitled to hold such office until a successor shall have been in like manner appointed and duly qualified.” This clause deprives the President of the power to remove any such officer without the consent of the Senate. The second section gives him the power to suspend officers “during the recess of the Senate” until its next meeting and for one month thereafter, under certain specified circumstances, and to fill vacancies in the same way and upon the same conditions. . . .
The President’s removal of Mr. STANTON and his appointment of Gen. THOMAS were in distinct and unmistakable defiance of these provisions of that law. It is also clear that this violation of the law has been intentional on the President’s part—not with a view, as the heated zealots of Congress assume, of usurping power and overthrowing the institutions of the country, but for the purpose of testing the constitutionality of the law, and of procuring a judicial definition of the limits and prerogatives of the Executive Department of the Government under the Constitution of the United States. . . .
He is not only entitled to such a decision, but the whole country is interested in having it given. Under our form of government, as under every form of government which has been or can be devised, doubts will arrive as to the proper distribution of authority and power. We have, unlike Governments of a different form, a written Constitution by which the limits of official authority are defined, and the powers and prerogatives of the several departments of the Government are described and conferred; and, consequently, the only controversies that can arise out of attempts on the part of one department to encroach on the jurisdiction of another, become questions of construction. . . .
There can be no doubt, we presume, in any one’s mind, that the Supreme Court is the proper tribunal for the decision of the question involved in this particular conflict between the President and Congress. . . .
The impeachment of the President, if pushed to trial in advance of such a decision by the Supreme Court, is in violation of this principle.