"We're looking today at whether Congress should look at some showing of cause" to fire U.S. Attorneys, said the senior Senator from Pennsylvania.
What Wallace might've said is "Uh, Senator Specter, it's been tried, and someone in your position should already know that such an effort is unconstitutional. The Senate itself failed to remove Andrew Johnson from office for violating an earlier, similar effort to limit presidential power."
Instead, he simply moved on.
Here's what one website says, which comports with my recollection of law school/history classes on the topic:
The Tenure of Office Act, passed over the veto of President Andrew Johnson on March 2, 1867, provided that all federal officials whose appointment required Senate confirmation could not be removed without the consent of the Senate. When the Senate was not in session, the Act allowed the President to suspend an official, but if the Senate upon its reconvening refused to concur in the removal, the officila must be reinstated in his position. It was not entirely clear whether the Act applied to cabinet officials appointed by a previous president, such as Secretary of War Edwin Stanton, a Lincoln appointee.
In the summer of 1867, with Congress not in session, Andrew Johnson decided the time had finally come to replace Edwin Stanton with a new secretary of war. Stanton had become increasingly at odds with Johnson and the rest of his cabinet, and had been conspiring with Radical Republicans in Congress to thwart Johnson's policies on Reconstruction, which were considered too soft by the Radicals. On August 5, 1867, Johnson sent Stanton the following message: "Public considerations of high character constrain me to say that your resignation as Secretary of War will be accepted." Stanton refused to resign, forcing Johnson to send Stanton a second letter suspending him from office, ordering that he cease all exercise of authority, and transferring power to a new secretary of war, Ullysses S. Grant.
On January 3, 1868, the new Congress met and refused to concur in the removal of stanton by a vote of 35 to 16. The President, however, refused to accept the Senate's decision, believing the Tenure of Office Act to be an unconstitutional infringement on the power of the executive. Hoping to obtain judicial review of the Act's constitutionality, Johnson on February 21, 1868 appointed General Lorenzo Thomas, Adjutant General of the Army, to the post of secretary of war. Stanton balked at leaving the office he had reoccupied since January. Charles Sumner, one of the Senate's leading Radical Republicans, sent Stanton a one word telegram: "Stick." Impeachment proceedings began within days.
Although both Presidents Ullysses Grant and James Garfield complained strenuously about the Tenure of Office Act, the Act was not repealed until 1887, at the urging of then President Grover Cleveland.
In 1926, in the case of Myers vs. United States, the Supreme Court, in an opinion by Chief Justice Taft, held unconstitutional a law requiring the consent of the Senate for removal of certain non-Cabinet officials.
It's pretty pathetic that a senior Senator and former Senate Judiciary Chairman would suggest such a clearly unconstitutional course. It's even more pathetic when one considers the fact that Specter is from Philadelphia, the place in which the document was drafted. One might have hoped that this would have produced a Senator steeped in the history and meaning of the document, and a commitment to its principles and text.
Then again, this is the same guy who suggested that the Senate should vote on "Not Proven" as to the Clinton impeachment, wrongly suggesting that such a conclusion was: (a) constitutionally appropriate; or (b) applicable to Clinton's brazen, virtually uncontested perjuries.
Shame on you, Senator Specter.
11 comments:
Thank you for posting this! When the firing "scandal" erupted, Andrew Johnson and the Tenure Act were the first things that came to my mind. I'm surprised the connection hasn't been pointed out on more blogs.
There is no question that the president has the right to "fire" US Attorneys. But the congress is right to insist that the law be amended to require the "advice and consent" of the Senate for replacement of those officers.
In pursuing this latter and constitutional objective, it would seem that the congress has a right and duty to inquire into the matter.
David Inglesias, former US Attorney from New Mexico, in a NY Times oped column writes about this. He clearly believes that he was fired because he did not feel he had the requisite facts to prosecute Democrats in an election fraud case BEFORE the last election (indeed, no prosecution is now forthcoming). Inquiry into this had been made by a Republican congresswoman and senator before the election. He was fired soon afterwards.
Inglesias, after stating he is a Republican, writes
"Little did I know that I could be fired for NOT being political."
The very suggestion of a federal criminal prosecution driven by political considerations raises enough question of the administration of justice to warrant congressional inquiry into the matter.
Second anonymous, you apparently are not paying attention. What you describe is PRECISELY what was declared unconstitutional in Myers.
'Course, don't let the facts or the Constitution get in the way of your wholly political attack. You've clearly got the talking points down pat.
Now I see why you are not admitted in Virginia.
Nice ad hominem, Anon 11:22. You make an uninformed and inaccurate personal attack in lieu of argument, surmising that which is patently false. Now I see why you post anonymously, coward (which is not, incidentally, an unreasonable surmise).
BTW, I am not admitted in Virginia because I don't need to be, and have never sought to be. I rarely have cases in Virginia, and those that I have had, I have always won (well, I always win my cases, so that's not unusual).
Okay.
In Myers v. United States,272 U.S. 52, the U. S. Supreme Court held that the president has the exclusive power to remove executive branch officials. The case dealt with the removal of a postmaster, Myers, by President Wilson. A federal statute provided that officers in that class could be "appointed and removed by the President with the advice and consent of the Senate." The removed postmaster argued his removal without the consent of the senate violated this statute.
The Supreme Court by Chief Justice Taft held that the statute insofar as it required the senate's consent for removal of an official violated the separation of powers doctrine.
However, the Chief Justice's opinion made a clear distinction between the appointive power of the executive which is specifically addressed in the US Constitiution and the removal power.
Chief Justice Taft opined:
"The history of the clause by which the Senate was given a check upon the President's power of apppointment makes it clear that it was not prompted by any desire to limit removals."
And again, he noted:
"The power to prevent the removal of an officer who has served under the President is different from the authority to consent or reject his appointment."
In my original post I noted the president has the "right to 'fire' US Attorneys." I suggested the congress had a right to amend the law to require the advice and consent of the Senate for rplacement of those officers.
What I described in my original post--the selection of replacements-- was NOT what was addressed by Myers (as cited above).
As far as your charge of "ad hominem", I can only note that you brought it on and began to whine about it first.
And, oh, by the way, it helps to READ a case you cite--we strongly suggest that in Virginia.
Oh, I didn't misunderstand Myers. I may have misunderstood your post, which opined that "the law be amended to require the 'advice and consent' of the Senate for replacement of those officers." As I read your comment, it suggested that removal and replacement with another should require the Senate's "advice and consent," when Myers makes a clear distinction (which you state in a later post) between "removal" and appointment of a replacement.
Gotcha. 'Cept no amendment is necessary --- that is neither what Specter is proposing, nor that for which I am criticizing him --- since the Senate ALREADY has the constitutional authority to "advise and consent" to the replacements appointed for those fired. That is also not why Democrats are on the political warpath against the President. NO ONE is suggesting that the Senate lacks the power to "advice and consent" on the appointment of replacement officers. What they are complaining about is his exercise of his constitutional authority to fire his appointees.
Your ideologically-charged comment therefore ignores the topic. I apologize for misreading it. I proceeded under the faulty assumption that you would address the issue raised.
Like I said: You've clearly got the talking points down pat.
And while I'm sure the Virginia Bar does not have rules governing it, blogosphere etiquette, such as it is, suggests that you should actually address the issue raised.
Thank you for visiting, but I would ask that you limit your comments to the issues raised, and not erect phony straw men. While I am accustomed to seeing them in union briefs, I expect a higher standard here.
A statutory amendmant certainly is necessary to require the advice and consent of the Senate to the persons replacing those US Attorneys who were removed. A bill requirting that has just passed the Senate.
But beyond that I regret that you did not understand the difference between "replace" and "remove." I would have thought that would be evident.
It's a pity your legal ability (or spelling ability, for that matter) doesn't match your arrogance, Anon, since you plainly don't know what you're talking about.
You are of course wrong to assert that "A statutory amendmant [sic] certainly is necessary to require the advice and consent of the Senate to the persons replacing those US Attorneys who were removed." The Senate ALREADY HAS that power, under the Constitution (you might want to read it some time), unless the President is replacing the fired Attorneys with recess appointments --- which is, also, within his presidential authority --- and then no Senate vote is necessary (though the appointments only last until the end of that Congress).
And it's not that I don't understand the difference between "replace" (which can mean "to supplant with another") and "remove." It's that your assertions were --- and remain --- nonnsensical and quibbling in light of existing constitutional provisions.
Anon 68.15.139, I don't have to take insults on my own blog, particularly from someone too cowardly to reveal his identity so we can compare credentials, causing one to suspect that you are demonstrably an idiot, as well as a coward.
You are deleted.
Nevertheless, you clearly don't understand the "statutory amendment" that you cite, nor the fact that it is unconstitutional under Myers. It does not address the point for which you are arguing, and would be unnecessary, as superfluous, if it did.
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