Rutherford B. Hayes - The reassertion of presidential prerogatives



The long congressional session that began in October 1877 was also marked by the first of two struggles between Hayes and members, now of his own party and then of the opposition, over the prerogatives of the presidential office. Because Hayes prevailed in each instance, the executive branch regained ground that had been lost during the two previous administrations in the perennial power struggle with the legislative branch. The immediate issues of contention were of limited consequence in their own right, but as with so much of what happened during Hayes's term, the implications for the future were considerable.

Hayes initiated the first of these tests of will when he decided that changes had to be made in the management of the New York Customhouse. Grant's appointees continued to take an active part in Senator Conkling's political machine. Alonzo Cornell, in particular, clung to his post as chairman of the New York Republican party even as he served as a naval officer, a direct violation of Hayes's instructions concerning reform of the civil service. So, in October 1877, Hayes nominated Theodore Roosevelt, Sr., Edwin A. Merritt, and L. Bradford Prince to replace collector Arthur, surveyor George H. Sharpe, and Cornell, respectively. Conkling allowed Merritt to be confirmed by the Senate, but he invoked "senatorial courtesy" to block the appointments of Roosevelt and Prince. ("Senatorial courtesy" was the notion, found nowhere in the Constitution, that a nomination to office in one of the states should not be made until after it had been cleared with that state's ranking senator of the president's party.) By a vote of 31 to 25, a majority of the Senate sided with Conkling on this point.

The imperious New York senator and his supporters did not reckon with Hayes's stubbornness in support of a principle—in this case, "the divorce of the Legislature from the nominating power," which he considered "the first step in any adequate and permanent reform" of the civil service because it would keep the offices involved out of politics. After Congress finally adjourned in June 1878, he suspended Arthur and Cornell in accordance with the terms of the almost forgotten Tenure of Office Act and replaced them on an interim basis with Merritt and Silas W. Burt. Finally, in the lame-duck session of the Forty-fifth Congress, Democratic senators, availing themselves of the opportunity to fish in troubled Republican waters, joined a minority of Hayes's own party to end Conkling's obstructionism. Their motivation was frankly partisan, but their action nevertheless had the effect of upholding the principle Hayes repeatedly enunciated.

The Democrats provoked the second battle by attempting to repeal or restrict the president's power to enforce the Federal Elections Law of 1871. This statute provided for the appointment of federal supervisors in congressional districts where there were allegations of irregularity in the conduct of elections. To guarantee that the supervisors would not be impeded in the performance of their duties, they could call on the local United States marshal to deploy as many deputies as the situation required. The law had been invoked not only in the South but in various large northern cities, notably New York, where Tammany Hall had engaged in massive vote fraud in 1868.

The Democrats' strategy was to attach riders to needed appropriation bills in the House of Representatives in the belief that they could then compel the Republican Senate to accept their terms. They first tried this ploy during the hectic last days of the electoral dispute. The House added to the army appropriation bill a rider that prohibited the use of any funds to support the claims of the Republican state governments in Louisiana and South Carolina. The Senate removed the rider, necessitating a conference committee to reconcile the differences between the two houses. The Democratic members of the committee refused to modify their version, and Congress adjourned without the appropriation being approved. This forced Hayes to call a special session in October 1877. By then, of course, the matter of the state governments had been resolved, and an appropriation was more easily adopted.

In the short lame-duck session that began in December, after the elections of 1878 had assured the Democrats control of both houses in the next Congress, they renewed their attempt to destroy the last vestiges of Reconstruction. The House appended to several fiscal 1879 appropriation bills riders repealing the elections law, a measure that permitted the president to employ the army to maintain order at the polls, and the jurors' test oath that barred former Confederates from service on federal juries. The Senate refused to concur, and again Congress adjourned without breaking the deadlock.

Hayes immediately called a special session of the new Forty-sixth Congress for March 1879. With the Senate no longer Republican, the president himself became the key to resisting the Democratic effort to turn back the clock. The Democratic majorities were slender, so it was certain that a veto could not be overridden. But would the Democrats then force parts of the government to shut down in order to get their way?

Hayes readily admitted that the jurors' test oath had outlived its usefulness and that the other statutes in question might legitimately be revised. However, he opposed outright repeal of the elections law and insisted that the federal government had the same obligation to safeguard the polls in congressional elections that the states had in other contests. The Democrats countered that the Constitution made the conduct of all elections primarily a problem for state regulation. Above all, Hayes was determined never to yield to the Democratic scheme to coerce him into accepting provisions of which he disapproved by holding hostage the appropriations needed to operate the government.

In late April, Congress passed an army bill with a rider barring any civil or military official from protecting federal elections from fraud or violence. Hayes returned the bill with a strongly worded veto. Two weeks later, Congress made the same objectionable provisions the subject of a separate bill, which Hayes also vetoed. At the end of May the Democrats in Congress tried again, using an omnibus bill appropriating funds for the executive, judicial, and legislative branches. This time they attached riders that permitted federal supervisors and deputy marshals to observe the conduct of congressional elections but denied them the authority either to prevent fraud and violence or to punish violations of the law after they had occurred. Again, Hayes responded with a veto.

During the last week of June, with the new fiscal year only a few days off, the logjam finally began to break. Congress sent Hayes a bill for the judicial branch alone that repealed the jurors' test oath and forbade any payments to deputy marshals for enforcing the elections law. Refusing to back down, Hayes fired off another veto message. In the meantime, the Democrats passed separate bills for the executive and legislative branches and for the army. They contained no riders, and Hayes signed them into law. Next he signed a revised bill for the judiciary that repealed the jurors' oath and simply omitted any appropriation for the marshals. He had already indicated his willingness to see the oath dispensed with, so the element of coercion was no longer involved.

In a last defiant gesture before adjourning on 30 June, Congress adopted a separate appropriation bill for the federal marshals that again restricted their use in connection with elections. Once more Hayes vetoed it. As late as May 1880, Congress passed the same bill for the marshals, and Hayes predictably sent it back. Only then did he get an unrestricted appropriation. In the end, the president obtained everything that he wanted, demonstrating that it was possible, by being steadfast, to uphold the independence of the executive branch.





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