A Constitutional Conundrum - This Could Be Fun

Jimklag

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#1
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What if one vote in the impeachment trial of Andrew Johnson had gone the other way and he had been removed from office for violating the Tenure Of Office Act which was clearly unconstitutional and stated to be so through a dicta by SCOTUS in Myers v. United States. What would have been the constitutional repercussions, if any, of removing a President for the violation of an unconstitutional act? Let's hear some scholarly opinions from the legal eagles among us.
 
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Jimklag

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Question 2: What would a Wade presidency have meant for Reconstruction and the future of African Americans? Unlike Johnson, who was a believer in white supremacy, Radical Republican Wade was an outspoken champion of black rights.
 
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#5
None... Johnson would have been removed through the Consitutionial mechanism of impeachment there is no recourse that can be taken. He would have been removed even if the charges were false as long as the Consitutionial impeachment process was followed... If the Consitutionial impeachment process was not followed than you have a crisis...
 

christian soldier

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#6
Question: Is it the President’s duty to faithfully execute a law passed by Congress, even if he believes it to be unconstitutional?
It would be the Supreme Court's duty and function to declare laws passed by Congress as unconstitutional. The executive branch would have to enforce the law enacted by Congress until it was legally challenged and adjudicated by the Supreme Court. In response to the other question in terms of Constitutional succession, the initial Act of 1792 provided for the presidential succession starting with the third in line being the President of the Senate, leader of the upper chamber, followed by the Speaker of the House, the leader of the lower chamber. This act was further amended in 1886 with new legislation that amended the old law to add the President's cabinet members into the line of succession starting with the Secretary of State. After several other legislative changes and a Presidential assassination in 1963, the final word on the Presidential line of succession was finalized with the passage of the 25th Amendment to the U.S. Constitution in 1967. I am surprised that the Congress and the Supreme Court did not clarify the line of succession earlier especially during Lincoln's Presidency with the numerous attempts to either kidnap or assassinate him or his cabinet members by the Confederate government and their sympathizers. David.
 

Jimklag

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It would be the Supreme Court's duty and function to declare laws passed by Congress as unconstitutional. The executive branch would have to enforce the law enacted by Congress until it was legally challenged and adjudicated by the Supreme Court. In response to the other question in terms of Constitutional succession, the initial Act of 1792 provided for the presidential succession starting with the third in line being the President of the Senate, leader of the upper chamber, followed by the Speaker of the House, the leader of the lower chamber. This act was further amended in 1886 with new legislation that amended the old law to add the President's cabinet members into the line of succession starting with the Secretary of State. After several other legislative changes and a Presidential assassination in 1963, the final word on the Presidential line of succession was finalized with the passage of the 25th Amendment to the U.S. Constitution in 1967. I am surprised that the Congress and the Supreme Court did not clarify the line of succession earlier especially during Lincoln's Presidency with the numerous attempts to either kidnap or assassinate him or his cabinet members by the Confederate government and their sympathizers. David.
David, the problem is that Congress blocked Johnson from testing the law in the courts. They virtually forced him to violate it.
 

christian soldier

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#8
None... Johnson would have been removed through the Consitutionial mechanism of impeachment there is no recourse that can be taken. He would have been removed even if the charges were false as long as the Consitutionial impeachment process was followed... If the Consitutionial impeachment process was not followed than you have a crisis...
I don't think you have a constitutional crisis if the impeachment process fails, the President would just continue fulfilling the rest of his required term of office albeit as a lame duck and would therefore be technically powerless to accomplish his political agenda. David.
 

christian soldier

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David, the problem is that Congress blocked Johnson from testing the law in the courts. They virtually forced him to violate it.
Jimklag. I have not read much about the Johnson Administration and his impeachment proceedings. Nevertheless, former Chief Justice of the U.S. Supreme Court, William Rehnquist wrote an excellent book about Johnson's impeachment which I will have to find and read before providing further future commentary. David.
 

Jimklag

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Jimklag. I have not read much about the Johnson Administration and his impeachment proceedings. Nevertheless, former Chief Justice of the U.S. Supreme Court, William Rehnquist wrote an excellent book about Johnson's impeachment which I will have to find and read before providing further future commentary. David.
What would a Wade presidency have been like? He would have been the most accidental of all accidental Presidents. How much could he have accomplished - albeit a majority of Congress was about as radical as he was?
 

Jimklag

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#11
As an aside, Senator Ross who cast the deciding vote to acquit Johnson, may not have been the upright, ethical hero that history has made him out to be. There was apparently a large slush fund created by Johnson's backers as a bribe fund for senators voting on impeachment. Here's a quote from constitutioncenter.org.

One theory is that Ross didn’t follow his constitutional conscience—he followed the cash. Ross may have been the beneficiary of a $150,000 slush fund set up by Johnson’s supporters.

In a 1999 article for Slate, writer David Greenberg pointed out another fact: Ross’s vote may not have been needed.

“At least four other senators were prepared to oppose conviction had their votes been needed—a fact that has been forgotten, maybe, because it doesn't square with the High Noon portrait of Ross as the man of principle facing down the mob,” Greenberg said.
 

christian soldier

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What would a Wade presidency have been like? He would have been the most accidental of all accidental Presidents. How much could he have accomplished - albeit a majority of Congress was about as radical as he was?
What an interesting question: perhaps Robert E. Lee and some of his officers could have been tried and convicted of treason and either executed or placed in prison. Lincoln's immortal and memorable words: "With Malice Towards None and Charity to All" would not have been implemented as a result of the passage of the Wade-Davis Bill, which provided for very strict terms for Confederate re-admittance back into the Union. David.
 

Jimklag

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What an interesting question: perhaps Robert E. Lee and some of his officers could have been tried and convicted of treason and either executed or placed in prison. Lincoln's immortal and memorable words: "With Malice Towards None and Charity to All" would not have been implemented as a result of the passage of the Wade-Davis Bill, which provided for very strict terms for Confederate re-admittance back into the Union. David.
You're right. It is logical that the Wade-Davis Bill would have been resurrected and passed (Lincoln had killed it with a pocket veto) and the course of Reconstruction would have been much different. I'm not so sure heads would have rolled.
 

christian soldier

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You're right. It is logical that the Wade-Davis Bill would have been resurrected and passed (Lincoln had killed it with a pocket veto) and the course of Reconstruction would have been much different. I'm not so sure heads would have rolled.
I think it would have been interesting to see if "President Wade" would have lived up to the old adage: "Power Corrupts, Absolute Power Corrupts Absolutely." When one acquires power in this manner it tends to change some people especially those who have tried to acquire it previously. David.
 

Jimklag

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I think it would have been interesting to see if "President Wade" would have lived up to the old adage: "Power Corrupts, Absolute Power Corrupts Absolutely." When one acquires power in this manner it tends to change some people especially those who have tried to acquire it previously. David.
There were a lot of people, in and out of his party, that were not big fans of Wade. He most definitely would not have had completely untroubled waters to sail. I think Wade is the most interesting part of this what-if scenario.
 

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#16
Interestingly, another constitutional glitch, I think Senate President Pro Tempore Benjamin Wade would have assumed the office of President on an interim basis. There was no Vice President and the Constitution, at that time, didn't specify the succession.
The Constitution provides only that Congress shall make provision for succession. In 1866 that meant the act of 1792 which established the succession as President pro tem, the Speaker of the House.

That is to say, the person who presided over the trial which removed the President and the person who presided over his impeachment by the House.....

Subsequent Presidential Succession Acts - we're currently under the Act of 1947 - added the Cabinet officers, so the line now starts in the Executive department - the Vice President - goes over to the Legislative, then back to the Executive.
 
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#18
Question: Is it the President’s duty to faithfully execute a law passed by Congress, even if he believes it to be unconstitutional?
No, in the event he believes it to be unconstitutional, he should go to court to resolve the question. With Johnson, it's clear the whole point of the law was to try and manufacture an excuse to impeach him. It was a congressional power grab.
 

Jimklag

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No, in the event he believes it to be unconstitutional, he should go to court to resolve the question. With Johnson, it's clear the whole point of the law was to try and manufacture an excuse to impeach him. It was a congressional power grab.
Correct - which is why they blocked him from testing the law in court.
 

Jimklag

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Correct - which is why they blocked him from testing the law in court.
They blocked him from testing the law in the courts by immediately passing articles of impeachment in the House and a hasty trial in the Senate. Johnson "dismissed" Stanton on February 21st - on February 24, 1868 three days after Johnson's dismissal of Stanton, the House of Representatives voted 126 to 47 (with 17 members not voting) in favor of a resolution to impeach the President. The Articles passed the House and were presented to the Senate on March 4. The very next day the Senate convened as a court of impeachment with Chief Justice Salmon Chase presiding. Talk about a rush to judgment!
 



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