Today in Supreme Court History: February 21, 1868

2/21/1868: President Johnson orders Secretary of War Edwin Stanton removed from office. In Myers v. U.S. (1926), the Supreme Court found that Johnson's actions were lawful.

President Andrew Johnson

Comments

[Dan Schiavetta]

Digital Realty Trust, Inc. v. Somers, 583 U.S. 149 (decided February 21, 2018): whistleblower statute did not allow damages for retaliatory termination where employee had reported securities laws violations to senior management but not to the SEC

Class v. United States, 583 U.S. 174 (decided February 21, 2018): defendant pleading guilty can still appeal on grounds that statute under which he was charged is unconstitutional (carrying a gun on U.S. Capitol grounds, 40 U.S.C. §5104(e)(1), which he argued violated Second Amendment; the D.C. Circuit ended up rejecting this argument, 930 F.3d 460, but that was before Bruen, 2022, where the Court, disagreeing with both parties in front of it, held that cases such as Class applied too lax a standard of scrutiny, see Bruen fn.4)

Ministry of Defense of Iran v. Elahi, 546 U.S. 450 (decided February 21, 2006): Elahi, an Iranian citizen, sued the Islamic Republic of Iran (he claimed it murdered his brother) in federal court and got a default judgment. Meanwhile Iran’s Ministry of Defense won an arbitration award in Switzerland on an unrelated matter and went to federal court to confirm it, thus locating the award in the U.S. Here Elahi moves to attach it so as to satisfy his judgment. The Foreign Sovereign Immunities Act does not apply to commercial activities of an “agent or instrumentality” of a foreign state but the Court, relying on the opinion of the Solicitor General, holds that the Ministry of Defense is not an “agent or instrumentality” but part of the foreign state itself. Therefore the Ministry of Defense has immunity and the petition for attachment is dismissed.

Gonzalez v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (decided February 21, 2006): Religious Freedom Restoration Act prevented prosecution of religious sect for using hallucinogenic tea in their services

Blanchard v. Bergeron, 489 U.S. 87 (decided February 21, 1989): 40% (!!) contingency fee arrangement between plaintiff and his lawyer did not place ceiling on amount of fees recovered from losing side in §1983 action (I can personally testify to the ridiculous over-lawyering by plaintiff counsel in §1983 actions, knowing they can recover for it or at least use it as leverage for settlement)

[apedad]

Re: Digital Realty Trust, Inc. v. Somers

(From the SEC Office of the Whistleblower website)

In September 2020, the Commission adopted amendments to the rule governing the whistleblower program that included a new definition of “whistleblower” to conform to the Supreme Court’s holding in Digital Realty. For purposes of retaliation protection, an individual is required to have reported information about possible securities laws violations to the Commission “in writing” before experiencing the retaliation. To understand how this may affect you, we encourage you to consult with an attorney.

If you choose to report a possible securities law violation internally to your company, you also can report that information directly to the SEC either before or at the same time as reporting internally. If you have already reported to the company, you can still report to the Commission now.

https://www.sec.gov/whistleblower/retaliation#:~:text=Somers%20stating%20that%20the%20Dodd,securities%20laws%20to%20the%20SEC.

[Dan Schiavetta]

Thanks!

I suppose extending whistleblower protections into the workplace might run into Commerce Clause problems.

[F.D. Wolf]

The Tenure of Office Act provided that "the Secretaries of State, of the Treasury, of War, of the Navy, and of the Interior, the Postmaster-General, and the Attorney general, shall hold their offices respectively for and during the term of the President by whom they may have been appointed and for one month thereafter, subject to removal by and with the advice and consent of the Senate."

At his impeachment trial, President Johnson argued less that the Tenure of Office Act was unconstitutional, but that he had not violated it at all. Secretary of War Stanton had not been appointed by President Johnson, but by President Lincoln, whom, of course, Johnson succeeded as President upon his death. Counsel for Johnson argued that President Lincoln's "term" had ended upon his death, so the Act was inapplicable to Johnson's attempt to fire Stanton.

[Dan Schiavetta]

Thanks! Interesting.

The Tenure of Office Act might have been the product of cynical hardball politics but it was a reasonable way to fix an apparent omission in the Constitution. If the President requires Senate consent to place Cabinet officers, it seems he would need its consent to remove them too.

[Dr. Ed 2]

Every President opposed it until it was repealed 20 years later.

Never mentioned is why Johnson wanted to fire Stanton, and remember that the time, the Army had the job of guarding Lincoln. Only later would that fall to the USSS.

I've often wondered...

[defaultdotxbe]

Johnson's defense counsel had stated his intent was to test the constitutionality of the Act (the Act itself appears to have been passed largely to protect Stanton)

[F.D. Wolf]

The 1869 amendments to the Act, passed one month into Grant's presidency, essentially rendered the entire Act meaningless. Under the Act, a President could "suspend" an officer, but the Senate could force his reinstatement by denying its "advice and consent". The amendments removed this power of the Senate (as well as the requirement that the President report his reasons for the suspension). So, the only practical effect of the Act, after the amendments, was to keep a "suspended" officer on the government payroll until the Senate confirmed a replacement.

[Dilan Esper]

And I think there was a Taft opinion in the 1920's that effectively retroactively held it unconstitutional.

[Krayt]

If the President requires Senate consent to place Cabinet officers, it seems he would need its consent to remove them too.

Not up on the political beefs a century and a half ago, but I submit this DNF. Placing someone in an important position might indeed justify advice and consent. But if the placer no longer likes the guy, he should be gone. They implement the executive will. This above seems to suggest the Senate has an inverse power to veto unplacement.

[Syd Henderson]

However, I make a similar argument against secession: Since Congress has to vote to admit a new state it should also have to approve secession. An argument against the Tenure of Office Act is that the President should choose his own advisors.

[Krayt]

There are other factors at play in secession, not the least of which is can a state leave, dragging large numbers of its citizens outside the protections of the Constitution, especially in the silly context of simple majorities. The EU and x-its are plagued with it. However, entrance was the same way.

[Krayt]

And, barring a large supermajority to exit, the nation can still go crush them with the military and keep them in. Nasty but arguably legitimate.

[Michael P]

Do you think the Senate should need to consent before a senior official can resign, even for purely personal reasons?

[Dan Schiavetta]

It seems odd, having broken away from Britain, that this country would not allow a state to break away from it.

(The Civil War was not a true test of that proposition; slave states are not legitimate political entities.)

[David Nieporent]

Again: the U.S. was not founded on the idea that the colonies had a legal right to secede from England. The underlying premise was that they had a natural right of revolution to break away from England because England was violating the colonists' rights. So there's no inconsistency with the position on the Civil War.

[Dilan Esper]

It's not even a natural right. It's just none dare call it treason. Had the South won the Civil War, then it wouldn't have mattered that secession was illegal. Had the US lost the revolutionary war, the leaders of the effort would have been tried and convicted for treason.

A former commenter here (I think it was Mark Field) said the real rule was nothing secedes like success. I think that's right.

[Noscitur a sociis]

If the President requires Senate consent to place Cabinet officers, it seems he would need its consent to remove them too.

I don’t see how that follows at all. The standard for firing someone is often different from the standard for hiring them.

[defaultdotxbe]

From what I've read it wasn't that Lincoln's term ended with his assassination* but rather than Stanton had been appointed during Lincoln's first term, and not re-appointed during his second, meaning Stanton's protection under the Act ended with Lincoln's first term and did not extend into the second.

* At that time (before the 25th Amendment) it was not yet clear that Johnson was "President" and not merely "Acting President" simply finishing out Lincoln's term.

[Dan Schiavetta]

I think Tyler settled that issue when he succeeded Harrison and declared himself President and not Acting President.

Odd how chance occurrences result in things getting set in stone. Surely one factor in Tyler’s decision (and its being accepted) was Harrison dying so early in his term. Was the country really going to be run by an “Acting President” for four years? It would make everything he did (particularly with foreign countries) seem temporary and only partially legitimate. Whereas if Harrison had died in (say) the summer of 1844 Tyler would have had to be a little more humble and we would now have a tradition of Acting Presidents, with Biden being the 42nd “real” President instead of the 46th.

[SMP0328]

The Tyler Precedent established that the Vice President became President if the latter died. It was assumed this also applied to removal or resignation of the President, but the issue was hopelessly confused regarding the disability issue. The 25th Amendment clarified the situation by establishing that the Tyler Precedent applied only to the death, resignation, and removal scenarios; regarding disability, the VP becomes only Acting President until the President recovers, one of the other scenarios takes place, the VP leaves office, or the President’s term ends.

[F.D. Wolf]

I suspect Tyler's primary motivation in insisting that he was "the President", and not merely "Acting President", was the paycheck. At the time, the salary of the Vice President was $5000, whereas the salary of the President was $25,000. Nowadays, an acting official gets the same pay as the official (while he is acting in his capacity), but it was not always so.

[SMP0328]

Ruth Silva, in her 1951 book Presidential Succession, proved that the Founding Fathers likely intended the VP to become only Acting President with Congress having the authority to call for a special election to fill the presidential vacancy. Tyler wanted to avoid that Sword of Damocles hanging over him, so he insisted that he inherited the office of President when William Henry Harrison died. Congress resisted at first, but then acquiesced. By the time of Andrew Johnson's impeachment, the Tyler Precedent was unquestioned.

[David Nieporent]

I've never read (or even heard of) the book, but I'd like to see any sort of historical support for the notion of a Congressionally-called "special election" for the presidential vacancy. There's certainly nothing remotely textual about that.

[SMP0328]

At the time of Harrison’s death (1841) and Johnson's impeachment (1868), Congress claimed to have that power but statutorily enacted it only regarding double vacancies (no President or VP) in the Presidential Succession Act of 1792.

[F.D. Wolf]

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President.

I am not familiar with that book, but it seems obvious to me that this provision in the original Constitution (superseded by the 25th Amendment), by grouping "inability" together with "death", "resignation", etc., clearly indicates that the Drafters intended the VP to become Acting President as opposed to President. Otherwise, what could they have intended in event of a temporary disability? Would there be two Presidents? Or would a President temporarily disabled by illness be out of a job?

[Bob from Ohio]

I disagree.

"said Office, the Same"

"Same" refers to "Office", the office devolves.

[Noscitur a sociis]

Why can't it refer to "Powers and Duties"?

[SMP0328]

This is the discussion that was ended by the 25th Amendment.

[F.D. Wolf]

That Andrew Johnson was the President, as opposed to the Acting President, had pretty much been settled by the "Tyler precedent", and he is consistently referred to as "President of the United States" in the articles of impeachment and during the Senate trial.

As to your first point, both arguments were made. From Benjamin Curtis' opening argument on behalf of Johnson:

The first inquiry which arises on this language is as to the meaning of the words "for and during the term of the President." Mr. Stanton, as appears by the commission which has been put into the case by the honorable Managers, was appointed in January, 1862, during the first term of President Lincoln. Are these words, "during the term of the President," applicable in Mr. Stanton's case? That depends on whether an expounder of this law judicially, who finds set down in it as a part of the descriptive words "during the term of the President," has any right to add "and any other term or terms for which he may afterward be elected." By what authority short of legislative power can those words be put into the statute so that "during the term of the President" shall be held to mean "and any other term or terms for which the President may be elected?" I respectfully submit no such judicial interpretation can be put on the words. Then, if you please, take the next step. "During the term of the President by whom he was appointed." At the time when this order was issued for the removal of Mr. Stanton was he holding "during the term of the President by whom he was appointed?"
***
The term assigned to Mr. Lincoln by the Constitution was conditionally assigned to him. It was to last four years if not sooner ended; but if sooner ended by his death, then the office was devolved on the Vice President, and the term of the Vice President to hold the office then began.

https://www.famous-trials.com/johnson/482-curtisopening

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O/T (for folks on the left coast)

Massive satellite to crash through Earth’s atmosphere Wednesday: What to know

It’s difficult to say when exactly ERS-2 will move through our atmosphere, but in an update early Wednesday morning (around 6 a.m. ET), the ESA predicted the satellite would reenter around 10:40 a.m. ET, plus or minus about an hour and a half. Shortly before 11 a.m. ET, the ESA wrote on X that there was “nothing to report as of yet.”

As part of that update, the ESA also provided a possible “ground track” of where ERS-2 could begin to break up. Based on the agency’s estimations, that could happen in the atmosphere above the Pacific Ocean, off the coast of California.

“Some fragments could reach Earth’s surface, where they will most likely fall into the ocean,” the ESA says. “None of these fragments will contain any toxic or radioactive substances.”

It’s worth noting that the Earth is surrounded by countless bits of space debris. You have a one-in-a-billion chance of being injured by any of it reentering our atmosphere — and a better chance of winning the Powerball jackpot.

https://thehill.com/homenews/nexstar_media_wire/4480636-massive-satellite-to-crash-into-earths-atmosphere-wednesday-what-to-know/

[Nige]

It's still a massive problem, but the Japanese have one solution:

https://www.bbc.com/news/business-55463366

[Dr. Ed 2]

It's only a matter of time until someone or something gets hit, and then watch the lawyers go wild. Under International law, the country from which it was launched is responsible -- I believe the US signed that treaty, would that be a waiver of sovereign immunity?

Just wondering...

[Syd Henderson]

I assume if he had reported it to the SEC he would have been awarded damages?