May the President revoke the removal? If the Senate refuse to concur in vacancies? What limit on term? What exercising offico con his office, and the powers of the person so performing its duties in his stead shall cease, and the official salary and emoluments of such officer shall, during such suspension, belong to the person so performing the duties thereof, and not to the officer so suspended: Provided, however, That the President, in case he shall become satisfied that such suspension was made on insufficient grounds, shall be authorized, at any time before reporting such suspension to the Senate as above provided, to revoke such suspension and reinstate such officer in the performance of the duties of his office. "3. The President shall have power to fill all vacancies which may happen during the recess of the Senate, by reason of death or resignation, by granting commissions which shall expire at the end of their next session thereafter. And if no appointment, by and with the advice and consent of the Senate, shall be made to such office so vacant or temporarily filled as aforesaid during such next session of the Senate, such office shall remain in abeyance, without any salary, fees, or emoluments attached thereto, until the same shall be filled by appointment thereto, by and with the advice and consent of the Senate; and during such time all the powers and duties belonging to such office shall be exercised by such other officer as may by law exercise such powers and duties in case of a vacancy in such office. "4. Nothing in this act contained shall be construed to extend the term of any office the duration of which is limited by law. "5. If any person shall, contrary to the provisions of this act, penalty for accept any appointment to, or employment in, any office, or shall accepting or hold or exercise, or attempt to hold or exercise, any such office or employment, he shall be deemed, and is hereby declared to be, trary to this guilty of a high misdemeanor, and, upon trial and conviction thereof, he shall be punished therefor by a fine not exceeding ten thousand dollars, or by imprisonment not exceeding five years, or both said punishments, in the discretion of the court. act? And for removal, &c., con "6. Every removal, appointment, or employment, made, had, or exercised, contrary to the provisions of this act, and the making, signtrary to the ing, sealing, countersigning, or issuing of any commission or letter of act? authority for or in respect to any such appointment or employment, shall be deemed, and are hereby declared to be, high misdemeanors, and, upon trial and conviction thereof, every person guilty thereof shall be punished by a fine not exceeding ten thousand dollars, or When may by imprisonment not exceeding five years, or both said punishments, in the discretion of the court: Provided, That the President shall have power to make out and deliver, after the adjournment of the Senate, commissions for all officers whose appointment shall have been advised and consented to by the Senate. the Presi dent com mission? How are "7. It shall be the duty of the secretary of the Senate, at the rejections to close of each session thereof, to deliver to the Secretary of the be certified? Treasury, and to each of his assistants, and to each of the auditors,. and to each of the comptrollers in the treasury, and to the treasurer, and to the register of the treasury, a full and complete list, duly certified, of all the persons who shall have been nominated to and rejected by the Senate during such session, and a like list of all the offices to which nominations shall have been made and not confirmed and filled at such session. such case? "8. Whenever the President shall, without the advice and con- What is the sent of the Senate, designate, authorize, or employ any person to duty of the perform the duties of any office, he shall forthwith notify the Secretary in Secretary of the Treasury thereof; and it shall be the duty of the Secretary of the Treasury thereupon to communicate such notice to all the proper accounting and disbursing officers of his depart ment. "9. No money shall be paid or received from the treasury, or What repaid or received from or retained out of any public moneys or funds strictions as to pay? of the United States, whether in the treasury or not, to or by or for the benefit of any person appointed to or authorized to act in or holding or exercising the duties or functions of any office contrary to the provisions of this act; nor shall any claim, account, voucher, order, certificate, warrant, or other instrument, providing for or relating to such payment, receipt, or retention, be presented, passed, allowed, approved, certified, or paid by any officer of the United States, or by any person exercising the functions or performing the duties of any office or place of trust under the United States, for or in respect to such office, or the exercising or performing the functions or duties thereof; and every person who shall violate any of the provisions of this section shall be deemed guilty What of a high misdemeanor, and, upon trial or conviction thereof, shall penalty for be punished therefor by a fine not exceeding ten thousand dollars, or by imprisonment not exceeding ten years, or both said punishments, in the discretion of the court." Passed over the President's veto, 2 March, 1867. violation? Cabinet in ferior offi See the Debates in 1789, on the question Whether the heads of Are the departments were "inferior officers?" 1 Lloyd's Debates, 480–600; 2 Íd. 1-12. The result of the debate seems to have been that they cers? were not. (Rawle's Const, ch. 14, pp. 163, 164; Sergeant on the Const. ch. 29 [ch. 31]; see President Monroe's Message of 12th April, 1822.) Story's Const. § 1536-1539. The President was overruled by the Senate, which contended that, as Congress possessed the power to make rules and regulations for the land and naval forces, they had a right to make any which would promote the public service; that Congress fixes the promotions, and every promotion is a new appointment, which requires ratification. (Sergeant's Const. ch. 29) [ch. 31.] The power to nominate does not naturally or necessarily include the power to remove; and if the power to appoint does include it, then the latter belongs conjointly to the executive and Senate. Story's Const. § 1538. It results, and is not separable from the appointment itself. (Ex parte Hennen, 13 Pet. 213.) Story's Const. § 1538; Federalist, No. 77. The The power to remove by the President was affirmed during the administration of President Washington by the casting vote of the Vice-President. Senate Journal, July 18, 1789, p. 42. question was much agitated again during the administration of President Jackson. Finally the power has been denied, in the shape of the tenure of office bill, during the administration of 179. 236. What is the power to fill President Johnson, because of the peculiar attitudes of a President and a Congress elected at the same time, and upon the same platform of principles. Without pretending to assert positively the constitutionality of the law, the editor ventures to predict, that no political party will ever entirely remove the restrictions, and leave the tenure of office wholly and exclusively at the will of the President. The real evil results from the too great patronage in the hands of the executive, and the corrupting influences, for a long time so openly employed, by the distribution of federal patronage to control State elections. The evil could only be reached and Presidential elections rendered peaceful and safe by an organic change, which would place the choice of federal magistrates where the constitutions of the States have generally placed them-in the hands of the people. If time has demonstrated that the elective democratic principle may be left to the wisdom of choice, why could not the rule apply to many grades of federal officers? [3.] The President shall have power to fill up all Vacancies? Vacancies that may happen during the recess of the 184, § 3. Senate, by granting commissions which shall expire at the end of their next session. If the vacan- 25. 32. How may occur? 179. 185. "ALL VACANCIES THAT MAY HAPPEN DURING THE RECESS OF THE SENATE."-Mr. Wirt, in 1823, Mr. Taney, in 1832, and Mr. Legaré, in 1841, concur in opinion that vacancies first occurring during the session of the Senate may be filled by the President in the recess. Mr. Mason, in a short opinion given in 1845, held that vacancies known to exist during the session could not be filled in the recess; but in a more elaborate opinion, written in 1846, he expresses general concurrence with his three predecessors. Ail these concurring opinions give a construction to the meaning of the words; and they agree that these words are not to be confined to vacancies which first occur during the recess, but may apply to vacancies which first occur during the session and continue in the recess. Attorney-General Stanbery on the President's power in the matter of appointments to office, 30th Aug. 1866, p. 4. 1. The vacancy may not have become known during the the vacancy recess; 2. It may have occurred by the failure of the Senate to act upon a nomination; 3. Or, upon a nomination and confirmation, where the party so nominated and confirmed refuses in the recess to accept the office; 4. Or by the rejection of the nominee of the President in the last hour of the session; 5. Or by the failure of the President to make a nomination during the session or after a rejection of his nominee. Id. 148. What means "that may happen"? The subject-matter is a vacancy. It implies duration-a condition or state of things which may exist. I incline to think, upon the mere words, that we might construe them precisely as if the phrase were, "If it happen that there is a vacancy in the recess," or, "If a vacancy happen to exist in the recess." Id. 5, 6. + But if the office first occur during the recess; or if it be created during the session and the President fail to appoint, he cannot appoint during the recess. The word "HAPPEN" has relation to some casualty, not provided for by law. (The appointment of the Ministers to Ghent, in 1813; Senate Journal of 20th April, 1822; 2 Executive Journal, pp. 415, 500; 3 Executive Journal, 297.) Story's Const. § 1559. 1 He may fill, during a recess of the Senate, a vacancy that occurred by expiration of commission during a previous session. Opin. 631. So he may fill a vacancy which has occurred by the expiration of a former temporary appointment, the Senate having neglected to act on a nomination to fill the office. 3 Id. 673; 4 Id. 523; 2 Id. 525; 4 Id. 361. Length of sion? 186. "WHICH SHALL EXPIRE AT THE END OF THE SESSION." The commission of an officer appointed during a recess, who is commisafterward nominated and rejected, is not thereby determined: it continues in force until the end of the next session, unless sooner determined by the President. 2 Opin. 336; 4 Id. 30. It was upon this state of facts that Mr. Taney gave his opinion What means in 1832, and held on this point that "the vacancy did take place "which shall in the recess, "} and that "the former appointment continued end of the expire at the during the session, and there was no vacancy until after they ad- session"? journed." Stanbery on filling vacancies, 6. 184. If the President appoint and commission, both expire at the end of the next session. If he nominate the same person, and the Senate concur, it is a new appointment; and the bond given "to fill up the vacancy," does not apply to acts done under the new appointment and commission (United States v. Kirkpatrick, 9 Wheat. 720, 733, 734, 735.) Story's Const. § 1538. the duties upon the powers? SEC. III.—He shall, from time to time, give to the What are Congress information of the state of the Union, and enjoined recommend to their consideration such measures as he President? shall judge necessary and expedient. He may, on Further extraordinary occasions, convene both houses, 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. He shall receive ambassadors and other public ministers. He shall take care that the laws be faithfully executed, and shall commission all the officers of the United States. 187. "GIVE INFORMATION OF THE STATE OF THE UNION, AND How are the RECOMMEND," &c.—The opening messages of Presidents Washington opinions 1 Ben- given? and John Adams were delivered in person and answered. ton's Coud. Debates; Story's Const. 3d ed. § 1561, note 1. See Have extra sessions been called? What does "ambassadors and 1 Tuck. Bl. Com. 343-345; Federalist, No. 78; Rawle's Coust. ch. 16, p. 171. The practice was changed by President Jefferson; and ever since all messages have been delivered in writing. This information of the state of the Union," embraces the reports of all the departments, and altogether they constitute what are called the executive documents of the government, which are valuable repositories for statesmon and students. Calls are often made by Congress on the President and the heads of departments, for information on special matters. 188. "MAY CALL CONGRESS TOGETHER AND ADJOURN," &c.This power of convening Congress in extra session, has been frequently exercised, both in regard to Congress and the Senate. Never could the necessity of the power be more forcibly demonstrated than upon the occasion of its exercise by President Lincoln, in April, 1863. See Federalist, No. 78; Rawle's Const., ch. 16, p. 171. It is not remembered that the occasion ever has arisen for the President to exercise the power to adjourn Congress. The power to receive AMBASSADORS AND OTHER PUBLIC MINISTERS carries along the power to receive consuls, and they never act without exequaturs. Rawle's Const. ch. 24, pp. 224, 225. other public ministers" Story's Const. § 1564-1572. See Federalist, No. 42; 1 Kent's Com. Lect. 2, pp. 40-44. Halleck's International Law, p. 242, § 4; Fynn, British Consuls abroad, pp. 34-55; 2 Phillimore on International Law, § 246, 258. embrace? 180, 181, 202. What is the In case of a revolution, or dismemberment of a nation, the judiciary cannot take notice of any new government or sovereignty, until it has been duly recognized by some other department of the government, to whom the power is constitutionally confided. (United States v. Palmer, 3 Wheat. 610, 634, 643; Hays v. Gelston, 3 Wheat. 246, 323, 324; Rose v. Himley, 4 Cr. 441; the Divina Pastora, 4 Wheat. 52, and note 65; the Nuestra Señora de la Caridad, 4 Wheat. 497.) Story's Const. § 1566. 189. "HE SHALL TAKE CARE THAT THE LAWS BE FAITHFULLY duty of the EXECUTED."-That is, to execute the laws to the extent of the defensive means placed in his hands. 9 Op. 524., President to see the laws exe cuted? 204. 174, 175. The Supreme Court of the United States cannot enjoin the President from seeing the laws faithfully executed. Mississippi v. Johnson, 4 Wallace, 498. Where an executive officer is clothed with discretion, the act to be done is executive, and beyond judicial control. (Marbury v. Madison, 1 Cranch, 137; Kendall, Postmaster-General v. Stockton and Stokes, 12 Pet. 527.) Id.; The State v. The Southern P. R. R. 24 Tex. 117; Paschal's Annotated Digest, note 191. It is of the very essence of executive power, that it should always and everywhere be capable of, and be in, full exercise. There shall be no cessation--no interval of time when there may be an incapacity of action. Stanbery on filling vacancies, 8, 9. Under this power the governor (the President) ought to order suits in all cases where the laws are infracted and the rights of the government invaded. The State v. Delesdenier, 7 Tex. 95. |