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(b) Officers whose appointment is otherwise provided for in the constitution are not subject to the appointing power of the President.

(c) Nominations must be submitted to the senate, which body has the power, by a majority vote, to reject any of which they do not approve.

(d) Congress may by law vest the appointment of inferior officers in the President alone, in the courts of law, or in the heads of departments.

77. The power of appointing to office includes the power of removing from office, with certain restrictions.

The constitution provides that the President "shall nominate, and by and with the advice and consent of the senate shall appoint, ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States whose appointments are not herein otherwise provided for, and which shall be established by law; but the congress may by law vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law, or in the heads of departments. The President shall have power to fill up all vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session."

With the exception of the small number of offices which are created by the constitution, it is the right and duty of congress to decide what offices shall be created and for what purposes. That is a legislative function. But when the office is brought into existence, it is for the executive to choose the incumbent. For, in order to the effective administration of the government, it is necessary that those officers, at least, whose duties are not merely clerical but involve the exercise of discretion and are political in their character, should be in sympathy with the executive for the time being. But at the same time it was deemed necessary to impose a check upon this great power of the President, lest he should be able, by the unrestrained choice of the federal officers, to subvert the whole administrative machinery of government to his own selfish or disloyal pur poses. To this end a power of rejecting unsuitable nominations has been lodged with the senate.

The offices which are "otherwise provided for" in the constitution are those of President and Vice-President, presidential electors, and the members of the senate and house of representatives. To these must also be added the officers of the two houses of congress, who, according to the constitution, are to be chosen by the respective houses. All other officers of the United States are subject to the joint appointing power of the President and senate, save those inferior officers whose appointment is intrusted by law to the President alone, or to the courts or the heads of departments.

Who are "inferior officers" within the meaning of the constitution? As the term is relative, the question cannot be answered abstractly with any degree of precision. But it has been said that "the word 'inferior' is not here used in that vague, indefinite, and quite inaccurate sense which has been suggested-the sense of petty or unimportant; but it means subordinate or inferior to those officers in whom respectively the power of appointment may be vested, the President, the courts of law, and the heads of departments. It is a word having definite relation to a superior." 48 Practically, however, congress has not gone to this extent in providing for the appointment of inferior officers. As examples of the distinction which is actually made, we may mention the fact that postmasters of the first three classes are appointed by the President and confirmed by the senate, while those of the fourth class are appointed by the postmaster general; and commissioned officers of the navy are likewise appointed by the President subject to the confirmation of the senate, while warrant officers are appointed by the President alone. It should be noticed that appointments to office can be made by the heads of departments only in those cases which congress has authorized by law; and therefore the appointment of an agent of fortifications by the secretary of war, there being no act of congress conferring that power upon that officer, is irregular.50

48 Collins v. U. S., 14 Ct. Cl. 568.

49 A clerk of a district court is one of the "inferior officers" here meant. In re Hennen, 13 Pet. 230. A receiver of a national bank, who is appointed by the comptroller of the currency with the concurrence of the secretary of the treasury, is an officer of the United States. Platt v. Beach, 2 Ben. 303, Fed. Cas. No. 11,215.

50 U. S. v. Maurice, 2 Brock. 96, Fed. Cas. No. 15,747.

Another question of much practical importance is as to when an appointment to office becomes complete, so as to put the appointee beyond the arbitrary will of the executive. This question. received very careful consideration in the early and leading case of Marbury v. Madison," wherein it was declared that when a commission has been signed by the President, the appointment is final and complete. The officer has then conferred on him legal rights which cannot be resumed. Neither a delivery of the commission, nor an actual acceptance of the office, is indispensable to make the appointment perfect.

We are next brought to the consideration of the subject of removals from office. The power of appointment necessarily includes the power to remove the appointee for cause. But the question which has been earnestly debated by statesmen and jurists is, where does this power reside, under the constitution? Is it in the President alone, or must the senate concur in a removal proposed by the executive, or is the whole matter within the jurisdiction of congress? On this point the constitution is entirely silent. But the whole course of executive and legislative interpretation of the constitution, from the earliest times until now, as well as the settled precedents, have practically determined that the power to remove public officers, when not otherwise expressly provided for, resides in the President alone. A complete discussion of this matter is beyond our present limits, but the reader may consult the authori ties cited in the margin.52 It should be here mentioned, however, that the construction thus put upon the question was at one time practically reversed by an act of congress. This was the "Tenure of Office Act," so called, passed in 1867.53 This statute in effect denied to the President the power to remove public officers without the consent of the senate. And it provided that, if good cause for the removal of any officer should arise during a recess of the senate, the President should only have the power to suspend the officer until the next session of the senate. But this statute was repealed

$1 1 Cranch, 137. See, also, U. S. v. Le Baron, 19 How. 73; 2 Story, Const. § 1546.

52 2 Story, Const. §§ 1537-1544; Pom. Const. Law, §§ 647-661; Miller, Const. pp. 156-162.

58 Rev. St. U. S. § 1767 et seq.

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by an act passed in 1887, which apparently amounts to a concession that the power of removal in such cases belongs to the President alone.54

In the case of vacancies happening during the recess of the senate, the President has power to make appointments to such offices, at his own pleasure and discretion, but such appointments hold good only until the end of the next session. There is some doubt as to whether a newly created office, which never has been filled, presents a case of "vacancy" within the meaning of this provision. In practice, the question has been decided both ways. But the plain inferences from the context seem to indicate with sufficient clearness that the constitution originally contemplated only those offices which were in existence and filled before the particular recess began.55 It has also been ruled by the courts that if a vacancy in an office occurs during the session, but remains unfilled at the end of the session, this is a case of vacancy "happening" during the recess. But the President has no power to anticipate a vacancy and make an appointment in advance to fill it.57 A commission issued by the President to fill a vacancy in an office, during a recess of the senate, continues in force until the end of the next session of congress, unless sooner determined by the President, even although the person commissioned shall have been in the mean time nominated to the office, and his nomination rejected by the senate.58

56

PRESIDENTIAL MESSAGES.

78. The President is not only empowered, but he is required, from time to time, to give to congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient.

Under the first two Presidents of the Republic, it was the custom for the chief executive to meet the two houses of congress in

84 24 Stat. 500.

52 Story, Const. § 1559; McCrary, Elect. § 237.

86 In re Farrow, 4 Woods, 491, 3 Fed. 112.

* McCrary, Elect. § 257.

58 In re Marshalship of Alabama, 20 Fed. 379.

person, at the opening of each session, and address them upon the state of the Union, recommending at the same time such acts of legislation as he deemed important or necessary. But from the time of Jefferson on, it has become the invariable practice for the President to make all his communications to congress, under this clause of the constitution, in writing. An annual message is prepared by the President and delivered to congress by his private secretary. And from time to time he sends to congress special messages relating to particular topics of national interest, often accompanied by correspondence or other documents. The propri ety of laying this duty upon the President is at once apparent when we consider how many details in the practical administration of the government are within the personal supervision of the Presi dent or the heads of departments, and can be made known to congress only by this means, and how important it is that the legislative body should have the most full and accurate information as to the state of the Union, in order to frame its laws with reference to public needs and interests. Story says that the President "is thus justly made responsible, not merely for a due administration of the existing systems, but for due diligence and examination into the means of improving them." 59 It is also usual for congress to request the President to communicate to it facts or papers in his possession or knowledge which bear upon any subject to which the attention of congress is addressed, either by way of contemplated legislation or of investigation. These requests are always complied with, unless in the judgment of the executive the interests of the nation require that such facts or documents, or the dealings of the executive department with the subject in hand, should for the present be kept secret.

CONVENING AND ADJOURNING CONGRESS.

79. The President may, on extraordinary occasions, convene both houses of congress or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper.

2 Story, Const. § 1561.

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