Andrew Johnson was right: The president can fire any employee he wishes

· February 16, 2018  
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Andrew Johnson
Boston Public Library | Flickr Creative Commons

From the moment Donald Trump fired James Comey, the media and Left have been obsessed with whether or not this constituted “obstruction of justice” and whether or not Donald Trump had the right to fire Comey. They’ve argued for impeachment of Donald Trump for the Comey firing. That’s been tried before. The first impeachment of a president was essentially over a firing, and it did not remove the president from office. Over half a century later, the Supreme Court confirmed that Andrew Johnson was right: The president has the right to fire anyone he wishes.

Let’s back up. Andrew Johnson was born in North Carolina and moved to Tennessee to escape capture for bailing out on a tailor apprenticeship. In those days, you were bound to a master for a period of time in exchange for room and board and education in a trade. Johnson settled in Greeneville, Tennessee, and worked as a tailor. After becoming involved in politics, Johnson eventually became the governor of Tennessee, after a stint as a member of the U.S. House of Representatives.

In the years immediately before the Civil War, Johnson was a U.S. senator. When war broke out, Johnson, who was a Democrat and a strict constitutionalist, did not support secession. He was appointed military governor of Tennessee by President Abraham Lincoln in 1862. In 1864, Lincoln ran with Johnson on a unity ticket for re-election to the presidency. When Lincoln was shot in the spring of 1865, Johnson became president of the United States.

With the end of the war shortly before Lincoln’s assassination, Johnson’s presidency was consumed with bringing the United States back together in a period now known as Reconstruction. As a southerner, Johnson believed the best course of action was to be magnanimous in victory and make the readmission of the former rebellious states as painless as possible. Republican members of Congress did not see eye to eye with Johnson on that. The tensions grew throughout his presidency, as Congress and Johnson clashed on policy.

Throughout 1867, the Republican Congress looked for opportunities to impeach Johnson, failing in a June 3, 1867, attempt when the House Committee on the Judiciary voted five to four against impeachment. Tensions continued to flare and came to a head when Johnson fired Secretary of War Edwin Stanton. Johnson believed that under Article II of the U.S. Constitution, he had the right to fire employees of the federal government. The House claimed he violated the Tenure of Office Act. The House voted to impeach Johnson by a wide margin.

The Tenure of Office Act, on which Johnson’s impeachment was based, had been passed in March 1867 and survived Johnson’s veto. The law stated that once a federal employee was confirmed by the Senate, the employee could not be removed from office without the approval of the Senate. It was specifically designed to tie Johnson’s hands. In effect, the law made it illegal for the president to fire confirmed federal officials. Johnson’s allies convinced enough senators of Johnson’s constitutional position that the conviction failed when it did not receive the necessary two-thirds vote in the Senate.

So how does this all relate to President Trump and James Comey? Is the Tenure of Office Act still the law of the land? The short answer is no. In 1887, the Tenure of Office Act was repealed during the presidency of Grover Cleveland.

But the story doesn’t end there.

In 1926, the Supreme Court decided Myers v. United States. In delivering his opinion, Chief Justice Taft said:

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’s answer was yes. Under Article II, the president of the United States has the power to remove any officer, or employee for that matter, of the United States. The president is the chief executive of the government.

From 1926 to today, as the progressive vision of Woodrow Wilson has been implemented across the government, many believe that there are such things as independent government agencies. Take for instance this statement by former CIA counterterrorism official Phil Mudd on CNN:

That’s right, according to Mudd, officials at the FBI are in direct defiance of the president. That’s not how the government is supposed to work. The Constitution gives the president the responsibility of running the government for a four-year term.

The Founders knew that having a professional, permanent governing class was antithetical to freedom. Having a government that must look over its shoulder at the people it governs would ensure that the liberties and freedoms of the governed would be front and center.

The president — any president, not just Trump — has the right to shape the federal government. A president exercising this authority is not grounds for a constitutional crisis or impeachment. It is exactly how the system is supposed to work. Andrew Johnson was right.


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Author: Rob Eno

Robert Eno is the director of research for Conservative Review. He is a conservative from deep blue Massachusetts but now lives in Greenville, SC.