During debate on the measure, many members of Congress had complained that in specifying through which officer he must transmit orders, the provision was a flagrantly unconstitutional effort to limit the powers of the Commander in Chief. Senator Reverdy Johnson of Maryland observed that

"I shall content myself, therefore, with saying
that it seems to me perfectly obvious that that
section is in direct conflict with the Constitution
of the United States.

(E]very intelligent
Senator who has a right to vote upon this floor
ought to know that this is a gross attempt at a

violation of the Constitution."13/ Senator Fessenden of Maine, on the other hand, argued that the power of Congress to prescribe rules means that "it has a right, moreover, to say that all orders shall pass through him as General."14) Senator Buckalew of Pennsylvania replied:

"What powers, then, are conferred upon the
President of the United States when the
Constitution declares that he shall be Commander-
in-Chief of the Army and Navy? Why, sir, there is
one power under this head which no man can deny or
doubt; and that is the power of giving orders to
his inferiors in military rank."15/

of War shall be issued through the General of the army, and, in case of his inability, through the next in rank. The General of the army shall not be removed, suspended, or relieved from command, or assigned to duty elsewhere than at said head-quarters, except at his own request, without the previous approval of the Senate; and any order or instructions relating to military operations issued contrary to the requirements of this section shall be null and void; and any officer who shall issue orders or instructions contrary to the provisions of this section shall be deemed guilty of a misdemeanor in office; and any officer of the army who shall transmit, convey, or obey any orders or instructions so issued contrary to the provisions of this section, knowing that such orders were so issued, shall be liable to imprisonment for not less than two nor more than twenty years, upon conviction thereof in any court of

competent jurisdiction." 13/ Cong. Globe, 39th Cong., 20 Sess. 1851 (1867). 14/ Id. at 1852.

Similarly, in the House opponents of the measure protested that

"It has always, so far as my reading has taught me
on the subject, been conceded to him that he was
entitled as Commander-in-Chief, to assign to
officers whatever duty in his judgment he thought
they ought to be called upon and were best quali-
fied to perform.

* * *

I am aware that the limitations of the
Constitution have not borne very heavily upon those

who are in the majority here : 7 ::"167
The legislation was widely seen as, like the Tenure of office
Act, a vehicle to tempt the President into disobedience which
then would provide a basis for impeachment charges.17/

President Johnson, however, signed the bill because he did not want to veto the accompanying appropriation provisions and leave the Army unpaid. His message back to the House on the same day of passage complained of that section and another in these words:

"The act entitled 'An act making appro-
priations for the support of the Army for the year
ending June 30, 1868, and for other purposes,
contains provisions to which I must call attention.

"These provisions are contained in the second
section, which in certain cases virtually deprives
the President of his constitutional functions as
Commander-in-Chief of the Army, and in the sixth
section, which denies to ten States of the Union
their constitutional right to protect themselves in
any emergency, by means of their own militia.
These provisions are out of place in an appropria-
tion act. I am compelled to defeat these necessary

16) Id. at 1354 (Rep. Niblack). 17/ "But if the President shall issue such an order then he

is to be guilty of a misdemeanor. If guilty of misdemeanor in carrying out the provisions of the Constitution he then becomes liable to impeachment, the very thing that gentleman wishes to bring about." Id. at 1353 (Rep. Le Blond).

During debate on the measure, many members of Congress had complained that in specifying through which officer he must transmit orders, the provision was a flagrantly unconstitutional effort to limit the powers of the Commander in chief. Senator Reverdy Johnson of Maryland observed that

"I shall content myself, therefore, with saying
that it seems to me perfectly obvious that that
section is in direct conflict with the Constitution
of the United States. ... (Elvery intelligent
Senator who has a right to vote upon this floor
ought to know that this is a gross attempt at a

violation of the Constitution."13/ Senator Fessenden of Maine, on the other hand, argued that the power of Congress to prescribe rules means that "it has a right, moreover, to say that all orders shall pass through him as General."14) Senator Buckalew of Pennsylvania replied:

"What powers, then, are conferred upon the
President of the United States when the
Constitution declares that he shall be commander-
in-chief of the Army and Navy? Why, sir, there is
one power under this head which no man can deny or
doubt; and that is the power of giving orders to
his inferiors in military rank."15/

of War shall be issued through the General of the army, and, in case of his inability, through the next in rank. The General of the army shall not be removed, suspended, or relieved from command, or assigned to duty elsewhere than at said head-quarters, except at his own request, without the previous approval of the Senate; and any order or instructions relating to military operations issued contrary to the requirements of this section shall be null and void; and any officer who shall issue orders or instructions contrary to the provisions of this section shall be deemed guilty of a misdemeanor in office; and any officer of the army who shall transmit, convey, or obey any orders or instructions so issued contrary to the provisions of this section, knowing that such orders were so issued, shall be liable to imprisonment for not less than two nor more than twenty years, upon conviction thereof in any court of

competent jurisdiction." 13/ Cong. Globe, 39th Cong., 2d Sess. 1851 (1867).

14/ Id. at 1852.

15/ Id. at 1853.

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becomes datie te impeachment, the very thang ini berliamen is ::T.ng out the provisions at the constatalà on the dar is to be gainy a sdamdana. Jer of mindamana

appropriations if I withhold my signature from the
act. Pressed by these considerations I feel con-
strained to return the bill with my signature, but
to accompany it with my protest against the sec-
tions which I have indicated."18/

Two years later Grant became President, and the provision was repealed. 19/ Constitutional historians since that time have cited the 1867 act, "aimed at humiliating the President by bypassing his constitutional authority,"20/ as a unique example of interference with the command role of the President. Johnson's "position was unquestionably sound."21) Under the act, "his military authority as commander-in-chief was shorn of essential attributes."22/ The legislation has gone down in history as a brief "extraordinary act" that was "[p]articularly obnoxious to any theory of constitutional regularity."23) And the most eminent scholar of the Presidency, Edward S. Corwin, concluded that the 1867 Congressional effort to prescribe the chain of command was "remarkable and unquestionably unconstitutional."24/

18/ Message Accompanying the Approval of the Army Appropriation

Bill, March 2, 1867, reprinted in Edward McPherson, The
Political History of the United States of America During the

Period of Reconstruction 178 (1871). 19/ Act of July 15, 1870, ch. 294, § 15, 16 Stat. 319. The fact

that Johnson and Grant remained on good terms for at least a year after the 1867 act diminished its practical effect.

See Mckitrick, op. cit. supra n.7, at 482 n.83. 20/ William M. Goldsmith, The Growth of Presidential Power: А

Documented History 1056 (1974). 21/ Andrew C. McLaughlin, A Constitutional History of the United

States 662 n.7 (1935).
22 William Archibald Dunning, Essays on the Civil War and

Reconstruction and Related Topics 261 (1910) (footnote
omitted).

23/ McLaughlin, op. cit. supra at 663.

24/ Edward S. Corwin, The President: office and powers 1787

1957 463 n.89 (4th rev. ed. 1957). The provision was also later criticized in passing in a historical discussion by the Supreme Court in Myers v. United States, 272 U.S. 52, 165-67 (1926), which referred to "[t]he extreme provisions

of all this legislation." 272 U.S. at 167. It is noted (Footnote Continued)

9