Replies

woodpusher: "For what purpose do you invoke the Tenure of Office Act, an Act notoriously known to be unconstitutional?
How could President Andrew Johnson violate a "law" which was unconstitutional and null and void ab initio?"

First of all, "null and void ab initio" was not used in any report I've seen, instead parts of the Tenure of Office Act were said (in 1926 in dicta) to be "invalid".
So, you claimed that Lincoln broke the law and Johnson didn't when the truth is just the opposite: Johnson broke an actual law but Lincoln didn't.
Yes, SCOTUS declared, in dicta, 59 years later, parts of the law Johnson broke to be "invalid", but that was never Trumbull's call to make.

woodpusher: "Trumbull was right, beyond any reasonable doubt and to a moral certainty."

Nonsense, Trumbull assumed for himself the authority of the Supreme Court to overturn precedent and declare a law "unconstitutional".

woodpusher: "So was President Andrew Johnson, and more recently, President Donald J. Trump."

Both the law and precedent were different in 1868 than today.
At the time precedent was the SCOTUS Marbury vs. Madison decision and Tenure was the law.

woodpusher: "The knowledge that the Tenure of Office Act was unconstitution is notorious.
For what ridiculous purpose do you raise it from its grave and support it?"

Because you lied about it!
At the time it was the law and Johnson broke it.
By stark contrast Lincoln broke no laws and yet you constantly lie about that too.

woodpusher: "Whatever makes you feel the compulsion to say that you are not a lawyer?
Argument based upon the Tenure in Office Act, notoriously known to be unconstitutional, makes that clear."

I'm a citizen and student of history.
I notice that the 1867 Tenure in Office Act was amended for President Grant in 1869, then repealed entirely in 1887.
In 1926, Chief Justice (former President) Taft wrote for the 6-3 majority that a similar law was unconstitutional, also referring back, in dicta, to parts of the 1867 Tenure act as "invalid".

Your legal nonsense gets you nowhere. It appears to be more Wikipedia nonsense. Perhaps you should read what the U.S. Supreme Court said. Taft wrote "the Tenure of Office Act of 1867, in so far 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, and that subsequent legislation of the same effect was equally so.

From the Syllabus of Myers v United States.

The question, (1) Whether a judge appointed by the President with the consent of the Senate under an act of Congress, not under authority of Art. IlI of the Constitution, can be removed by the President alone without the consent of the Senate; (2), whether the legislative decision of 1789 covers such a case; and (3), whether Congress may provide for his removal in some other way, present considerations different from those which apply in the removal of executive officers, and are not herein decided. Pp. 154-158.
This Court has recognized (United States v. Perkins, 116 U. S. 483) that Congress may prescribe incidental regulations controlling and restricting the heads of departments in the exercise of the power of removal; but it has never held, and could not reasonably hold, that the excepting clause enables Congress to draw to itself, or to either branch of it, the power to remove or the right to participate in the exercise of that power. To do this would be to go beyond the words and implications of that clause and to infringe the constitutional principle of the separation of governmental powers. P. 161.
Assuming the power of Congress to regulate removals as incidental to the exercise of its constitutional power to vest appointments of inferior officers in the heads of departments, certainly so long as Congress does not exercise that power, the power of removal must remain where the Constitution places it,—with the President, as part of the executive power, in accordance with the legislative decision of 1789. P. 161.
Whether the action of Congress in removing the necessity for the advice and consent of the Senate, and putting the power of appointment in the President alone, would make his power of removal in such case any more subject to Congressional legislation than before, is a question not heretofore decided by this Court and not presented or decided in this case. P. 161.
Congress is only given power to provide for appointments and removals of inferior officers after it has vested, and on condition that it does vest, their appointment in other authority than the President with the Senate's consent. P. 164.

Myers, Administratrix, v. United States, 272 U.S. 106 (1926)

Opinion of the Court at 112-113:

On June 16, 1789, the House resolved itself into a Committee of the Whole on a bill proposed by Mr. Madison for establishing an executive department to be denominated the Department of Foreign Affairs, in which the first clause, after stating the title of the officer and describing his duties, had these words: “to be removable from office by the President of the United States.” 1 Annals of Congress, 455. After a very full discussion the question was put: shall the words “to be removable by the President” be struck out? It was determined in the negative—yeas 20, nays 34. 1 Annals of Congress, 576.
On June 22, in the renewal of the discussion, “Mr. Benson moved to amend the bill, by altering the second clause, so as to imply the power of removal to be in the President alone. The clause enacted that there should be a chief clerk, to be appointed by the Secretary of Foreign Affairs, and employed as he thought proper, and who, in case of vacancy, should have the charge and custody of all records, books, and papers appertaining to the department. The amendment proposed that the chief clerk, ‘whenever the said principal officer shall be removed from office by the President of the United States, or in any other case of vacancy,’ should during such vacancy, have the charge and custody of all records, books, and papers appertaining to the department.” 1 Annals of Congress, 578.
“Mr. Benson stated that his objection to the clause ‘to be removable by the President’ arose from an idea that the power of removal by the President hereafter might appear to be exercised by virtue of a legislative grant only, and consequently be subjected to legislative instability, when he was well satisfied in his own mind that it was fixed by a fair legislative construction of the Constitution.” 1 Annals of Congress, 579.
“Mr. Benson declared, if he succeeded in this amendment, he would move to strike out the words in the first clause, ‘to be removable by the President’ which appeared somewhat like a grant. Now, the mode he took would evade that point and establish a legislative construction of the Constitution. He also hoped his amendment would succeed in reconciling both sides of the House to the decision, and quieting the minds of gentlemen.” 1 Annals of Congress, 578.
Mr. Madison admitted the objection made by the gentleman near him (Mr. Benson) to the words in the bill. He said: “They certainly may be construed to imply a legislative grant of the power. He wished everything like ambiguity expunged, and the sense of the House explicitly declared, and therefore seconded the motion. Gentlemen have all along proceeded on the idea that the Constitution vests the power in the President; and what arguments were brought forward respecting the convenience or inconvenience of such disposition of the power, were intended only to throw light upon what was meant by the compilers of the Constitution. Now, as the words proposed by the gentleman from New York expressed to his mind the meaning of the Constitution, he should be in favor of them, and would agree to strike out those agreed to in the committee.” 1 Annals of Congress, 578, 579.

- - - - - - - - - -

Opinion of the Court at page 114:

It is very clear from this history that the exact question which the House voted upon was whether it should recognize and declare the power of the President under the Constitution to remove the Secretary of Foreign Affairs without the advice and consent of the Senate. That was what the vote was taken for. Some effort has been made to question whether the decision carries the result claimed for it, but there is not the slightest doubt, after an examination of the record, that the vote was, and was intended to be, a legislative declaration that the power to remove officers appointed by the President and the Senate vested in the President alone, and until the Johnson Impeachment trial in 1868, its meaning was not doubted even by those who questioned its soundness.

Opinion of the Court at page 161:

But the Court never has held, nor reasonably could hold, although it is argued to the contrary on behalf of the appellant, that the excepting clause enables Congress to draw to itself, or to either branch of it, the power to remove or the right to participate in the exercise of that power. To do this would be to go beyond the words and implications of that clause and to infringe the constitutional principle of the separation of governmental powers.

Opinion of the Court at page 174-176

What, then, are the elements that enter into our decision of this case? We have first a construction of the Constitution made by a Congress which was to provide by legislation for the organization of the Government in accord with the Constitution which had just then been adopted, and in which there were, as representatives and senators, a considerable number of those who had been members of the Convention that framed the Constitution and presented it for ratification. It was the Congress that launched the Government. It was the Congress that rounded out the Constitution itself by the proposing of the first ten amendments which had in effect been promised to the people as a consideration for the ratification. It was the Congress in which Mr. Madison, one of the first in the framing of the Constitution, led also in the organization of the Government under it. It was a Congress whose constitutional decisions have always been regarded, as they should be regarded, as of the greatest weight in the interpretation of that fundamental instrument. This construction was followed by the legislative department and the executive department continuously for seventy-three years, and this although the matter, in the heat of political differences between the Executive and the Senate in President Jackson’s time, was the subject of bitter controversy, as we have seen. This Court has repeatedly laid down the principle that a contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be given its provisions. Stuart v. Laird, 1 Cranch 209, 309; Martin v. Hunter's Lessee, 1 Wheat. 304, 351; Cohens v. Virginia, 6 Wheat. 264, 420; Prigg v. Pennsylvania, 16 Pet. 544, 621; Cooley v. Board of Wardens, etc., 12 How. 299, 315; Burroughs-Giles Lithographing Company v. Sarony, 111 U. S. 53, 57; Ames v. Kansas, 111 U. S. 449, 463-469; The Laura, 114 U. S. 411, 416; Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 297; McPherson v. Blacker, 146 U. S. 1, 28, 33, 35; Knowlton v. Moore, 178 U. S. 41, 56; Fairbank v. United States, 181 U. S. 283, 308; Ex parte Grossman, 267 U. S. 87, 118.
We are now asked to set aside this construction, thus buttressed, and adopt an adverse view, because the Congress of the United States did so during a heated political difference of opinion between the then President and the majority leaders of Congress over the reconstruction measures adopted as a means of restoring to their proper status the States which attempted to withdraw from the Union at the time of the Civil War. The extremes to which the majority in both Houses carried legislative measures in that matter are now recognized by all who calmly review the history of that episode in our Government, leading to articles of impeachment against President Johnson, and his acquittal. Without animadverting on the character of the measures taken, we are certainly justified in saying that they should not be given the weight affecting proper constitutional construction to be accorded to that reached by the First Congress of the United States during a political calm and acquiesced in by the whole Government for three-quarters of a century, especially when the new construction contended for has never been acquiesced in by either the executive or the judicial departments. While this Court has studiously avoided deciding the issue until it was presented in such a way that it could not be avoided, in the references it has made to the history of the question, and in the presumptions it has indulged in favor of a statutory construction not inconsistent with the legislative decision of 1789, it has indicated a trend of view that we should not and can not ignore. When, on the merits, we find our conclusion strongly favoring the view which prevailed in the First Congress, we have no hesitation in holding that conclusion to be correct; and it-therefore follows that the Tenure of Office Act of 1867, in so far 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, and that subsequent legislation of the same effect was equally so.
For the reasons given, we must therefore hold that the provision of the law of 1876, by which the unrestricted power of removal of first class postmasters is denied to the President, is in violation of the Constitution, and invalid.

The Court reviewed the history of the relevant constitutional provision, and found the 1867 legislation impossible to uphold, and attributed it to a Congress that went to extremes, as recognized by all who calmly review the history of that episode in our government, which apparently excludes BroJoeK.

And the Court noted that "we are certainly justified in saying that they should not be given the weight affecting proper constitutional construction to be accorded to that reached by the First Congress of the United States during a political calm and acquisced in by the whole Government for three-quarters of a century, especially when the new construction contended for has never been acquiesced in by either the executive or the judicial departments."

A dictum is a statement, remark, or observation in a judicial opinion not necessary for the decision of the case.

In Myers, where the Appellant's argument was based upon the unconstitutional Act of 1876, whose relevant provision was could not be distinguished from the Act of 1867. The Court directly found the Act of 1867 to have been repugnant to the Constitution, and therefore null and void ab initio, and that any subsequent legislation to the same effect, such as the Act of 1876, was therefore equally unconstitutional and null and void ab initio. And the Court further held that, "we must therefore hold that the provision of the law of 1876, by by which the unrestricted power of removal of first class postmasters is denied to the President, is in violation of the Constitution, and invalid."

It is not a dictum when it is necessary and central to the case.

http://law2.umkc.edu/faculty/projects/ftrials/impeach/imp_tenure.html

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

Aside from the observable fact that it is not a dictum, my source here is a law school, yours is apparently some clueless, anonymous hockey puck on Wikipedia.

As a supposed student of history who expounds upon the law, you should get your head out of Wikipedia and try a few court opinions and law books.

When a law is struck down as repugnant to the Constitution, it is struck down ab initio, as if it never existed. The enacting body had no authority to enact it, and legally it never existed.

Marbury v. Madison, 5 U.S. 137 (1803), Opinion of the Court

5 U.S.176:
The question whether an act repugnant to the Constitution can become the law of the land is a question deeply interesting to the United States, but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it.
That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent.
This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments.
The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited
5 U.S. 177
and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.
Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.
Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.
This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject.
If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.
It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.
5 U.S. 178
So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.
Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.
This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

woodpusher: "Taft wrote "the Tenure of Office Act of 1867, in so far 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, and that subsequent legislation of the same effect was equally so."

For anyone who's keeping score, I win this point.
Our legal expert woodpusher claimed the 1867 Tenure of Office Act (on which President Johnson was impeached) was "null and void ab initio".
In fact it was a perfectly valid law until repealed in 1887, then in 1926 SCOTUS declared it in dicta and in part, invalid.

Woodpusher's suggestions to the contrary, my point here is not to defend the repealed law, but simply to notice that it was a law and President Andrew Johnson broke it, for which he was impeached.
By contrast, Lincoln broke no laws, woodpusher's repeated claims to the contrary notwithstanding.

woodpusher: "The Court reviewed the history of the relevant constitutional provision, and found the 1867 legislation impossible to uphold, and attributed it to a Congress that went to extremes, as recognized by all who calmly review the history of that episode in our government, which apparently excludes BroJoeK. "

For propaganda reasons, because that's why he's here, our brand new FRiend woodpusher refuses to acknowledge either the real issue or his own lies, indeed, he doubles down on his lies.

In this case, woodpusher has made the preposterous claims that President Lincoln broke the law regarding habeas corpus and President Johnson broke no law regarding the 1867 Tenure of Office Act.
To make such claims he must fantasize for Lincoln a law which did not exist and for Johnson he must nullify a law which did exist.

woodpusher: "A dictum is a statement, remark, or observation in a judicial opinion not necessary for the decision of the case. "

Right, and here woodpusher perhaps unwittingly seems to confirm my point, which is that the 1926 SCOTUS ruling mentioning the 1867 Tenure Act did not call it "null and void ab initio" as woodpusher previously claimed.

woodpusher: "In Myers, where the Appellant's argument was based upon the unconstitutional Act of 1876, whose relevant provision was could not be distinguished from the Act of 1867.
The Court directly found the Act of 1867 to have been repugnant to the Constitution, and therefore null and void ab initio, and that any subsequent legislation to the same effect, such as the Act of 1876, was therefore equally unconstitutional and null and void ab initio. "

So far I've seen only the trade-craft of a highly sophisticated & trained propagandist, not an actual fact.
Once again our FRiend woodpusher pushes that term, "null and void ab initio," claiming "the Court" said it when, in actual quoted fact, what the SCOTUS wrote was "insofar as it..." the 1867 Tenure act was "invalid".

woodpusher: "Aside from the observable fact that it is not a dictum, my source here is a law school, yours is apparently some clueless, anonymous hockey puck on Wikipedia. "

You, woodpusher, are a "clueless anonymous hockey puck" who should not be throwing stones at others alleged.
Take a humble pill before you sit down to post, focus on pledging to tell the truth, the whole truth and nothing but.
Admit when you're wrong and stop substituting ad hominins for actual facts.

In the 1926 Meyers case SCOTUS ruled on an 1876 law directly and, as a side note, mentioned the repealed 1867 Tenure law in dicta.

woodpusher: "As a supposed student of history who expounds upon the law, you should get your head out of Wikipedia and try a few court opinions and law books. "

As a trained propagandist, woodpusher, you've avoided the real questions here by changing the subject and jumping down a legalistic rabbit hole with considerable justifiable confidence that nobody without serious legal training would be foolish enough to follow you there.
But I am foolish enough and for this reason: so far I've seen no honesty or moral integrity in your arguments, only highly sophisticated propaganda, as your repeated use of the words, "null and void ab initio" illustrates.

woodpusher: "When a law is struck down as repugnant to the Constitution, it is struck down ab initio, as if it never existed.
The enacting body had no authority to enact it, and legally it never existed. "

And yet that is not what happened to the 1867 Tenure Act.

woodpusher quoting from: "Marbury v. Madison, 5 U.S. 137 (1803), Opinion of the Court "

And here, finally, we see a serious civics lesson presented in full, unedited and unencumbered with woodpusher's own propaganda opinions -- well worth the price of admission!

Now there are several points we can remember regarding Chief Justice John Marshall's 1803 Marbury v. Madison ruling:

Federalist Marshall is vilified by some of our Lost Cause posters as a "tyrant", "monarchist", "crony capitalist" and "living constitution" advocate.
So Virginian Marshall stands up there, right beside such other Founders, in our Lost Causers' pantheon of "Villains of the Republic", as John Adams, Alexander Hamilton, Henry Clay and (but don't tell anyone): George Washington.
In the 1926 Meyers case, Justice Brandeis used Marshall's ruling in Marbury vs. Madison to dissent from Chief Justice Taft's ruling.
Brandeis noted that Marshall's opinion:
So, are we to praise Marshall for his opinions regarding "strict construction" and in the same breath condemn him for his assumptions used later as precedent for the 1867 Tenure of Office Act?

Perhaps we can simply recognize that good people can have different opinions and that in this case the right opinions (Chief Justice Taft's) eventually prevailed.

My "foolish" point then remains victorious: that Lincoln broke no laws regarding habeas corpus, but Johnson did break the 1867 Tenure of Office law, woodpusher's propaganda to the contrary notwithstanding.