The Imperial Congress


By the time Madison had become chief executive, Congress had acquired a sense of its importance in the constitutional scheme of things. Committees, originally improvised to deal with proposals from the president, had become permanent affairs, and many legislators had become semipermanent residents of Washington. They had learned a primary lesson: presidents may come and go, but incumbent lawmakers, if they have even a modicum of shrewdness, can go on and on. The party caucus, which President Jefferson devised to muscle lawmakers on Capitol Hill, became a vehicle through which powerful congressmen could run the country. But strong presidents, notably Andrew Jackson and James Polk, managed to impose their wills on the legislature in crucial matters without triggering a showdown about the balance of power.

When the Civil War erupted, Abraham Lincoln, whom long apprenticeship as a Whig had already made a firm advocate of presidential power, showed no hesitation in wielding unprecedented authority as commander in chief. He suspended habeas corpus and other rights, issuing the Emancipation Proclamation and a stream of executive orders that bypassed the slow-moving Congress. After his four years of presidential rule, an assassin’s bullet triggered a confrontation with an already restive legislature.

The upheaval began when Andrew Johnson, Lincoln’s less than tactful successor, tried to implement the dead man’s conciliatory Reconstruction policy toward the defeated South. Aware that Lincoln had already clashed with Congress on this sensitive topic, Johnson decided to “steal a march on the legislature” by establishing pardon and amnesty programs before the lawmakers convened in December 1865.

In that fateful month, the Republican majority in Congress assembled with very different ideas, their righteousness reinforced by Johnson’s low opinion of the freed slaves’ potential for citizenship and the South’s manifest lack of repentance. Thaddeus Stevens, the leader of the House Republicans, sounded the battle cry: “Though the President is Commander-in-Chief, Congress is his commander, and, God willing, he shall obey. He and his minions shall learn that this is not a Government of kings and satraps but a Government of the people, and that Congress is the people.”

The zenith of this congressional counterrevolution occurred on April 9, 1866, when the House of Representatives overrode a significant presidential veto for the first time in American history. The new law made the federal government responsible for protecting the civil rights of the freed slaves in the defeated states, abrogating the Black Codes that Southerners had imposed to control their former chattels. Johnson had condemned the bill as an unconstitutional invasion of  states’ rights.

Stevens and his Senate ally Benjamin “Bluff Ben” Wade of Ohio swiftly responded by setting up the Joint Committee of Fifteen, composed of six senators and nine congressmen, a body that made regular reports to Congress and drafted legislation. The committee rammed through a series of punitive laws that made Reconstruction a hated word in the South.

The Joint Committee also drafted legislation that drastically contracted the president’s authority. Early in 1867 they passed laws that could keep Congress in continuous session if it was so inclined and added the power to call itself into special session, a right hitherto reserved to the chief executive. They struck at the president’s role as commander in chief by ordering him to issue all military orders through Gen. Ulysses S. Grant, forbidding Johnson to remove or transfer Grant without Senate consent. To cripple his patronage powers, they passed the Tenure of Office Act, which made it a “high misdemeanor” for the president to fire any federal official without the Senate’s approval.

When Johnson challenged this latter law by dismissing Secretary of War Edwin Stanton, Congress moved to impeach him. Most of the charges dealt with the Tenure of Office Act, but the president’s accusers threw in a final article that delineated the real nature of the clash: he was guilty of “defaming Congress.” Fortunately for the future of the nation, some Republican senators began to have second thoughts about what their party was doing. “Once set the example,” warned Lyman Trumbull of Illinois, “and no future president will be safe who happens to differ with a majority of the House and two-thirds of the Senate on any measure deemed by them important.”

In the final vote, Trumbull and six other Republicans destroyed their careers rather than give Congress this ultimate power, which a majority was eager to grasp. The vote—35 for conviction, 19 against—was one short of the needed two-thirds majority.

Although the impeachment failed, Johnson emerged from the ordeal a shattered president who barely ventured out of the White House for the rest of his term. Thad Stevens’s dictum that Congress and the people were identical became the virtual law of the land. “The executive department of a republic like ours should be subordinate to the legislative department,” Sen. John Sherman remarked a few years later, as if discussing something as obvious as the changing of the seasons.

When the Republicans elected General Grant to the presidency, Grant nominated department store magnate Alexander T. Stewart as his Secretary of the Treasury. Congress vetoed him and insisted instead on Rep. George S. Boutwell, one of the leaders of Johnson’s impeachment effort. Grant asked them to repeal the Tenure of Office Act. Congress declined. To make things perfectly clear, a delegation of senators visited the new president in the White House to lecture him on how unpleasant congressional opposition could become. A chastened Grant declared himself for “harmony.”