32 

### Filling the Vacancy Following the

Death of the Sec retary of War

The performance of the duties of the Secretary of War by an acting secretary may not extend beyond

thirt y days from the date of the death of the late Secretary of War , and it will be necessary for a new Secretary of War to be appointed in accordance with the provisions of the Appointments Clause of the Constitution to perform those duties after that date

.

T here is some doub t whether the duties specifically imposed by Congress upon the Secretary of War

may be performed by the President, as Commander in Chief of the Army, or by a ny other person not serving as the Secretary of War.

September 21, 1936

M EMORANDUM O PINION FOR THE A TTORNEY G ENERAL

Reference is made to the request of Mr. Marvin H. Mclntyre, Assistant Secr etary to the President, for your opinion concerning the necessity of the appointment

of a successor to the late Secretary of War. *

The A ct of August 7, 1789, ch. 7, § 1, creating the Department of War, pr ovides:

That there shall be an executive department to be denominated the Department of War, (a) and that there shall be a principal officer therein, to be called the Secretary for the Department of War, who shall per form and execute such duties as shall from time to time be enjoined on, or entrusted to him by the President of the United

States

. . . .

1 Stat. 49, 49

– 50. This statute is silent as to the method of appointing the Secretary, and no su bsequent legislation relative thereto has been enacted. The appointment of the Secretary is therefore left under the provisions of Article II, S ection 2 of the Constitution, which, in prescribing the duties of the President, provides in part:

[H] e shall nominate, and by and wi th the Advice and C onsent of the

S enate, shall appoint

. . . 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,

* Editor’s Note: The version of this opinion that was transcribed in the Unpublished Opinions of the
Assistant Solicitor General contai ned a footnote here cross

- referencing another short memorandum regarding the Presi dent’s authority to recess

- appoint a Secretary of War. That memorandum , dated September 25, 1936, is included at the end of this opinion.Filling the Vacancy Following the Death of the Secretary of War

33 in the President alone, in the Courts of Law, or in the Heads of D epartments.

The President sha ll 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 S ession.

Provision is made by sections 177 and 179 of the Revised Statutes for the
temporary filling of the office of the head of a department. Those sections read as

follows:

In case of the death, resignation, absence, or sickness of the head of any Department, the first or sole assistant thereof shall, unless ot herwise directed by the P resident, as provided by section one hundred and seventy

- nine, perform the duties of such head until a successor is appointed, or such a bsence or sickness shall cease [§ 177]

.

In any of the cases mentioned in the two preceding sections, except the death, resignation, a bsence, or sickness of the At torney

- General,

the President may, in his discretion, authorize and direct the head of any other Department or any other officer in either Department, whose appointment is vested in the President, by and with the advice

and con sent of the Senate, to perform the duties of the vacant office until a successor is appointed, or the sickness or absence of the i ncumbent shall cease [§ 179]

.

Rev. Stat. §§ 177, 179 (2d ed. 1878), 18 Stat. pt. 1, at 28 (repl. vol.), recodified at

5 U.S.C. §§ 4, 6 (1934)

. The filling of such office under sections 177 and 179 of the Revised S tatutes, however, is temporary only, and section 180 (as amended) reads as follows:

A vacancy occasioned by death or resignation must not be temp orar i ly filled under the [ three preceding sections ] for a longer period

than thirty days.

5 U.S.C. § 7 (1934)

. Reading sections 177, 179, and 180 together, it is my opinion that the temp orary filling of a vacancy occasioned by the death or resignation of the head of a department may not be for a period of more than 30 days. This view has long been

adhered to by your predecessors. (Sec tion 178 pertains only to bureaus.)

I n an opinion dated December 31, 1880, Attorney General Devens, replying to a letter of the Secretary of the Trea sury informing him that the period of 10 days

, for which Honorable Alexander Ramsey, Secretary of War, was designated to act as Secretary of the Navy under the provisions of sections 177 and 180 of theSupplemental Opinions of the Office of Legal Counsel in Volume 1

34 Revised Statutes

, expired the day before, and inquirin g whether any person after such expiration could properly sign requisitions as Acting Secretary of the Navy

for payments on account of the Navy, stated:

In answer, I would say that, in my opinion, the vacancy in the o ffice of the S ecretary of the Navy crea ted by the resignation of Hon.

R.W. Thompson cannot be filled by designation of the President b eyond the period of ten days. This power of the President is a statut ory power, and we must look to the statute for its definition. An exa mination of the statutes which precede that statute of 1868 embodied in section 180 Revised Statutes satisfactorily shows that the period for which the vacancy can be filled by designation is limited to ten days. It would not, therefore, be in the power of the Preside nt, after such ten days, to designate another officer, or the same officer, to act

for an additional period of ten days. The statutory power being e xhausted, the President is remitted to his constitutional power of a ppointment. No appointment has been made , and there is, and can be,

no person authorized by designation to sign requisitions upon the Treasury Department on account of Navy payments as Acting Secr etary of the Navy.

Appointments Ad Interim , 16 Op. Att ’ y Gen. 596, 596

– 97 (1880)

. In an opinion to t he P resident dated March 31, 1883, Attorney General Bre wster, construing sections 177, 178, 1 79

, and 180 o f the Revised Statutes with

reference to the necessity of appointing a successor to Postmaster General Howe, deceased, said:

[T] hose sections have rec eived an interpretation by Mr. Attorney

General Devens, as appears on reference to volume 16 of Attorney

Generals ’ opinions, pages 596 and 597.

It was there held by that officer that the President has power to temporarily fill by an appointment ad interim

, as therein prescribed,

a vacancy occasioned by the death or the resignation of the head of a Department or the chief of a bureau therein, for a period of ten days only . W hen the vacancy is thus temporarily filled once for that per iod, the power conferred by the statute is exhausted; it is not comp etent to the President to appoint either the same or another officer to

thereafter perform the duties of the vacant office for an additional period of ten days.

After carefully reading those sections and examining the history of their enactment, I concur in that opinion.Filling the Vacancy Following the Death of the Secretary of War

35 Appointments Ad Interim , 1 7 Op. A tt ’ y G en . 530, 530

– 31 (1883)

. In an opinion to the P resident dated September 11, 1884, rendered in conne ction with the death of Secretary of the Treasury Folger, At torney General Bre wster, referring to his former opinion of March 31, 1883, submitted upon the death

of Postmaster General Howe, affirmed that opinion and advised that the concl usions therein applied to the case under consideration. Performing Duties of Va cant Office , 18 Op. Att ’ y Gen. 58, 58

– 59 (1884)

. In an opinion to the P resident dated January 31, 1891, rendered in connection

with the death of Se c retary of the Treasury Windom, Attorney General Miller

said:

It seems to me impossible to escape the effect of section 180 in limiting to a period of ten days the time during which the vacant o ffice may be filled, e ither by the statutory succession provided in se ction 177, or the designation by the President provided in section 179, or by both.

Vacancy in Head o

f Departments

, 2 0 Op. Att ’ y Gen. 8, 9 (1891)

. At and prior to t h e time the opinion of Attorney General Miller above referred to was rendered, the limitation in section 180 was 10 days. After that opinion was

rendered

, the Congress, by the A ct of February 6 , 1891, ch. 113, 26 Stat. 733, 733,

amended the section so as to extend the time to 30 days, but did not otherwise change the section. In an opinion dated March 15, 1920, Acting Attorney General Ames, in answer

to the letter of the U ndersecretary of State advising that the 30 days of his incumbency as Acting Secretary of St ate expired on that date and inquiring what action would be appropriate for him and other officers of the department to take pending the confirmation by the Senate of the nomination of Mr . Colby as Secretary of State, stated:

The President not having “ otherwise directed, ” you held as “ the

first or sole assistant ” under section 177. While that section provides

that such an assistant shall “ perform the duties of such head until a

successor i s appointed, ” this language must be construed in conne ction with section 180 as amended, which limits the time to 30 days. The vacancy to be filled under section 177 is manifestly to be filled only “ temporarily, ” whether filled by the assistant or in such other

manner as the President may direct. It can not be properly held that the 30 days ’ limitation applies only to a case in which the President

otherwise directs and not to a case in which the assistant is acting

under the statute, because the person acti ng in either contingency is acting temporarily, and because section 180 as amended specifically limits the period for temporary action to 30 days.Supplemental Opinions of the Office of Legal Counsel in Volume 1

36 . . . .

In the absence of a specific case it is difficult to suggest what course you and the other officers of the department should take

pen d ing the confirmation of Mr. Colby ’ s nomination. It is probably safer to say that you should not take action in any case out of which legal rights might arise which would be s ubject to review by the

courts.

Vacancy in Offic e of Secretary of State , 32 Op. A tt ’ y G en . 139, 141 (1920)

. An examination of the legislative history of the act of February 6, 1891, chan ging the limitation in section 180 from 10 days to 30 days, is instructive. The opinion of Attorney G eneral Miller adv ising the President that it was necessary to appoint a successor to Secretary of the Treasury Windom within 10 days was dated January 31, 1891. Vacancy in Head of Departments , 20 Op. Att ’ y Gen. 8 (1891)

. On the same date President Harrison addressed to the Congress the following message :

The sudden death of the honorable William Windom, Secretary of the Treasury, in New York, on the evening of the 29th instant, has directed my attention to the present state of the law as to the filling of a vacancy occasion ed by the death of the head of a Department.

I transmit herewith an opinion of the Attorney

- General, from

which it will be seen that under the statutes in force no officer in the Treasury Department, or other person designated by me, can exercise

the dutie s of Secretary of the Treasury for a longer period than ten days. This limitation is, I am sure, unwise and necessarily involves,

in such a case as that now presented, undue haste and even indelic acy. The President should not be required to take up the que stion of

the selection of a successor before the last offices of affection and respect have been paid to the dead. If the proprieties of an occasion

as sad as that which now overshadows us are observed possibly one

half of the brief time allowed is gone be fore, with due regard to the decencies of life, the President and those with whom he should a dvise can take up the consideration of the grave duty of selecting a head for one of the greatest Departments of the Government.

Hasty action by the Senate is also necessarily involved, and ge ographical limitations are practically imposed by the necessity of s electing some one who can reach the Capital and take the necessary

oath of office before the expiration of the ten days.Filling the Vacancy Following the Death of the Secretary of War

37 It may be a very proper restriction of the power of the President in

this connection that he shall not designate, for any great length of time, a person to discharge these important duties who has not been confirmed by the Senate; but there would seem to be no reason why

one of the Assistant S ecretaries of the Department wherein the v acancy exists might not discharge the duties of Secretary until a su ccessor is selected, confirmed, and qualified. The inconvenience of this limitation was made apparent at the time of the death of Secr etary Folger. President Arthur, in that c ase, allowed one of the Assi stant Secretaries, who had been designated to act in the absence of the Secretary, to continue in the discharge of such duties for ten days, then designated the same person to discharge the dut ies for a further

term of ten days, and then made a temporary appointment as Secr etary, in order to secure the consideration that he needed in filling this important place.

I recommend such a modification of the existing law as will pe rmit the first or sol e Assistant, or, in the case of the Treasury Depar tment, where the Assistants are not graded, that one who may be de signated by the President to discharge the duties of the head of the Department until a successor is appointed and qualified.

22 Cong. Rec. 2015 (message to Senate), 2060 (identical message to House). Upon the receipt of this message in the House, Mr. McKinl ey introduced a bill (H.R. 13453) to amend section 180 of the Revised Statutes to read as follows:

A vacancy occasioned by death or resign ation must not be temp orar i ly filled under the three preceding sections for a longer period than thirty days.

22 Cong. Rec. 2064 (Feb. 2, 18 9 1).

When motion to suspend the rules and pass the bill was seconded by Mr. McMillin, the bill was by unanimous cons ent considered and passed by the House without being referred to a committee. Id. at 2065. Mr. McKinley, in presenting the bill, stated:

[T] he P resident of the United S tates on last Saturday sent a message to the House of Representatives, as well as to the Senate, calling th e attention of Congress to the fact that under existing law he could

de s ignate an o fficer to a Cabinet place for ten days, and ten only, and

recommended that an extension of the time be given by public law. Doubtless gentlemen on both sides of the House have read the me ssage in question and are aware of the occasion which led to itsSupplemental Opinions of the Office of Legal Counsel in Volume 1

38 transmission to Congress. The bill I have sent to the desk proposes to amend section 180 of the Revised Statutes, which reads as follows:

S ec . 180. A vacanc y occasioned by death or resignation must not be temporarily filled under the three preceding sections for a longer period than ten days.

Section 177 applies to the case which gives rise to this bill and is in the following words:

S ec . 177. In case of the death, resignation, absence, or sickness of the head of any Department the first or sole Assistant thereof shall, unless otherwise directed by the President, as provided by section 179, perform the duties of such head until a successor is appointed or such absence or sickness shall cease.

Secti on 180 limits the power of the P resident to appoint a succe ssor until a permanent appointment is made and confirmed by the Senate, limiting it to a period of ten days, in which time the a ppointment must be made.

Now

, this bill follows the language of section 180, which is in the same words, except that we insert “ t hirty ” instead of “ ten ” days, so that it gives the President thirty days ’ time within which he may de signate a head of a Department to hold until his success or is qualif ied or appointed and confirmed.

Id. at 2064

– 65. Mr. McMillin, who had seconded the motion for suspension of the rule and passage of the bill, stated:

Mr. Speaker, lest my demand for a second on the motion of the gentleman from Ohio should be misunderstood, I wish to say that I do not see any reason why this bill may not be passed.

If I remember correctly this is one of the statutes placed on the

books in order to control President Johnson. I am not sure about it,

but that is my memory.

I do not, however, assent to the reasoning embodied in the Pres ident ’ s message and am unable to see how he can reason as he does

to reach the conclusion at wh ich he has arrived. The principal part of the message is taken up with a statement that it is indecorou s to the dead to proceed to carry out the statutes for the benefit of the living.

I do not think that would be an act of indecorum; and hence I shouldFilling the Vacancy Following the Death of the Secretary of War

39 not vote for this proposition on that ground. But I can see that the p eriod of ten days is a limit too sh ort for the action which may be ne cessary in the appointment of the head of an Executive Department,

and the Chief Executive m ig ht find himself at a great disadvantage in making that calm and judicious decision which should characterize

his action.

Id. at 2065. In the Senate the bill as passed by the House was referred to the Committee on

Finance wh ich reported an amendment striking out all after the enacting clause and thereafter considerably revising sections 177, 178, and 179 of the Revised

S tatutes and repealing section 180. The following is a part of the discussion of the Senate Finance Committee

amendment on the floor of the Senate:

MR. GORMAN. I ask the Senator from Vermont if that [ referring to the part of the amendment which repealed section 180, Revised

S tatutes ] is not a very radical change and whether there ought not to

be some limitation. We all know that gentlemen are selected for a ssistants of these Departments, for the great Treasury Department, and there might be some question as to whether favorable action was

to b e had in selecting a head of that Department. It does not seem to me that there ought to be a limit. Formerly I understand the time was six months, and afterwards during President Johnson ’ s time it was

limited to ten days. Now, we are going back and throwing it open and permitting these officers to be designated and to act for an y length of time.

. . . .

M R. HALE. I should be very glad to have the Senator who r eports this bill state to the Senate what reasons there we re for going so largely into the question of the tenure of certain officers and their appointment. The emergency that arose was one that was clearly d efined and was the s u

bject of a special message from the President.

The House of Representatives evidently took the matter up in that spirit, and passed a simple bill of a few lines, which I am bound to say suits me very much better than this long bill reported by the Se nator from Vermont and sought to be put through now certainly wit hout my being able to unde rstand it. It occurs to me that the better thing to do would be to do just what the House of Representatives did, take that simple bill and pass it without any amendment.

. . . .Supplemental Opinions of the Office of Legal Counsel in Volume 1

40 MR. EVARTS. Mr. President, I have made a careful examination

of the clauses i n the statute book now relating to this subject, and

ha v e come to the conclusion, without reference to the b ill introduced into the Senate, which I had not seen n o r heard of till this morning, that all that is necessary either for permanent legislation or for thi s exigency is to enlarge the period within which authority for temp orary appointment is needed. This I understand now has been provi ded for by a bill which passed the other House, simply by substituting

the word “ t hirty ” for “ ten, ” as the statute no w reads. Whether any

new regulations should be made hereafter (and I can not foresee their necessity) this measure is all that is needed for this exigency, and so

far as I can see all that is necessary for any supervening exigencies

hereafter.

. . . .

MR. ALLISON. If the Senator will allow me, the provisions of the amendment are perfectly clear as proposed by the Senate co mmittee. Instead of making the term thirty days, an Assistant Secretary is appointed who shall hold indefinitely until the President shal l have selected a Secretary. That is the difference between the House bill

and the Senate amen dment, and the only difference.

MR. REAGAN. The effect of that might be that we should have the head of a Department holding indefinitely without the consent of

t he S enate, and I do not think that ought to be. I prefer the House

bill.

. . . .

MR. HALE. It appears to me that the very fact that this debate has

arisen here and that doubts have come up in the minds of S enators as to the operation of this amendment is in itself a conclusive argument against the amendment. The other branch of the national Legislature took the subject up at once and unanimously passed the simple bill that disposes of the question, the only real question that there is in it,

as the Preside nt desired undoubtedly

— I do not pretend to speak for

him

— but that seems to be his desire as indicated by his message.

I do not understand that there has been any serious inconvenience in the Departments heretofore, excepting upon this ten days ’ limit ation, and the only thing that was sought to be done in the other branch was to relieve that, and I, for one, hope we may follow in the line they have taken.Filling the Vacancy Following the Death of the Secretary of War

41 . . . .

MR. DAWES. I should like to hear from the Committee on F inance the reasons they have to give for extending the time indefinit ely; why it is better to put it in the power of the President to have an

adviser without the consent of the Senate than to have one for thirty or forty days, a time sufficient for all the purposes that could be e xpected or desi red except for the purpose of having an adviser without

the consent of the Senate.

. . . .

MR. GORMAN. Mr. President, I have not looked into the subject particularly and it is comparatively new. My understanding, howe ver, is that originally in the very fir st act passed upon this subject, du ring General Washington ’ s Administration, six months was the limit.

MR. MORRILL. It was.

MR. GORMA

N . I understand from the S enator from Vermont that I am correct in that statement. Congress was jealous about this

matter a nd would not permit a designation to extend beyond the p eriod of six months. So we ran along until we came to the exciting scenes during P resident Johnson ’ s Administration, when the major ity of Congress at that time thought there was some abuse by the President, even within that limit, in the appointment of his Cabinet

officers and designating others to act in their place, and at that time a law was passed limiting the designations to ten days. From that per iod until now we have had a great many cases w here the Administr ation, I have no doubt, has been embarrassed. I think we had one in the case of Secretary Manning, who was sick for quite a long time. Secretary Folger also during his service as Secretary of the Treasury

was sick and afterwards died.

MR. EDMUNDS. If the Senator from Maryland will pardon me right on that point, in the instance of Secretary Manning, Mr.

Fairchild was the Assistant Secretary, whose office was fixed by law

and who had been confirmed by the Senate under the law and with

the id ea that, in the illness of his chief, the duty would devolve upon him by operation of law, and not necessarily by any designation of

the P resident. It is the law which provides it. Therefore, in my opi nion, as the law now stands, an Assistant Secretary may proceed until

the President chooses to oust him by designating somebody else, or,

which is the same thing, the business of any Department can go onSupplemental Opinions of the Office of Legal Counsel in Volume 1

42 indefinitely by the deputy named by law, as distinguished from the selection by the President, until the va cancy is filled, and in that way

Mr. Fairchild was enabled to go on. The only difficulty is in what I think is a wrong construction placed by a former Attorney General in a very brief opinion upon this right of the lawful deputy or assistant

to act for mor e than ten days, who held in one instance under the law

that the Assistant S ecretary could only act for ten days, which I think is a great mistake; but as the committee has reported this amen dment, instead of leaving the law to operate upon the Assistant S ecr etary upon whom the duty is devolved, namely, the First Assistant, it authorizes the President to step in and take his choice for an indefinite period, which I do not think is right.

Id. at 2078

– 79

. The amendment proposed by the Senate Finance Committee was rejected and the bill as sent over by the House was passed by the S enate. Id. at 2079. From this action by the Congress under the circumstances existing, and e s pecially in view of

the discussion of the bill and the proposed Senate Finance Committee am endment

on the floor of the Senate, it seems clear that Attorney General Miller ’ s constru ction of the statute correctly represents the intent of the Congress. In view of the above, it is my opinion that the performance of the duties of the Secretary of War by an a cting s ecretary may not extend beyond thirty days from

the date of the death of the late Secretary of War, and that it will be necessary for a

S ecretary of War to be appointed in accordance with the provisions of Article II,

S ection 2 of the Consti tution to perform those duties after that date. It has been suggested that the President, as Commander in Chief of the Army,

would be authorized under his constitutional powers to perform the duties of the Secretary of War. It will be noted, however, that in addition to the original duties placed upon the Secretary of War by the A ct of August 7, 1789, creating the Department of War, to “ perform and execute such duties as shall from time to time be enjoined on, or entrusted to him by the P resident of the Uni ted S tates

, ” 1 Stat. at 50, the Congress has from time to time imposed upon the Secretary of War specific statutory duties, as will be seen by reference to sections 184

– 219, t itle 5,

U.S. C ode ; to title 32, U.S. C ode

, relating to the N ational G uard; and to various other statutes. It cannot, of course, be contemplated that the President will actually

serve as Secretary of War, and I have some doubt whether the duties specifically imposed by the Congress upon the Secretary of War as such officer can be perfor med by any person not serving as Secretary of War.
Moreover, it seems to me that the Constitution and the acts of Congress toget her evince the intent that the President shall appoint a successor to a deceased or resigned S ecretary of War within thirty days from the time the office becomes

vacant. In my opinion his failure to do this will subject him to unfavorable criticism, and will be immediately seized upon by those who have persistentlyFilling the Vacancy Following the Death of the Secretary of War

43 sought to create the impression that the President has no regard fo r the Constit ution and the laws. This is particularly true in view of the legislative history of the statutes and the many published opinions of the Attorneys General construing

them.

S hould the President not desire to make the permanent appointment until after the convening of the next Congress, a resignation would not be necessary, since the appointment at that time by the P resident of a new Secretary of War, concurred in by the Senate, would ipso facto vacate the office as of the date the new a ppointment became effective. See Blake v. United States , 103 U.S. 227, 237 (1880)

. If the President may appoint a S ecretary of War, it would seem that the President at his pleasure at any time may require his resignation and appoint someone else as

S ecretary of War to fill such vacancy. It may be that the President could, if he so desired, designate the person a ppointed at this time as Acting S ecretary of War, as an indication that the appoin tment was to be in the nature of a temporary one. Such an appointee would,

h owever, in my opinion, be S ecretary of War, and if elevated to that office from some other position in the Department I have serious doubt whether he could later

resume his former office without reappointment and, if the nature of the office required it, c onfirmation by the Senate. Moreover, such an appointment might result in the President being charged with subterfuge, and might subject him to the

same kind of unfavorable criticism as that to which he would probably be subject if no appointment were made at this time.

GOLDEN W. BELL

Assistant Solicitor GeneralSupplemental Opinions of the Office of Legal Counsel in Volume 1

44 September 23, 1936

S UMMARY O F M EMORANDUM O PINION F OR A TTORNEY G ENERAL *

I. The A ct of August 7, 1789, creating the Department of War provides that

“ there shall be a principal officer therein, to be calle d the S ecretary for the Department of War

. ” The statute does not provide the method of appointing a secretary nor has any subsequent legislation done so. Such appointment therefore is governed by Article II, S ection 2 of the Constitution under whic h the President “ shall nominate, and by

and with the A dvice and C onsent of the Senate, shall appoint ” the S ecretary of

War. The same section provides that “ [t]he P resident shall have Power to fill up all Vacancies that may happen during the Recess of the S enate, by granting Commi ssions which shall expire at the End of their next S ession

. ” II. The only statutory authority for the President in the event of the death or resignation of the head of a d epartment to designate a person to perform the duties

of the vacant office until a successor is appointed is to be found in sections 177 and 179 of the Revised Statutes, the former providing that “ the first or sole

assistant thereof shall, unless otherwise directed by the President, perform the

duties of such head u ntil a successor is appointed ” ; and the latter (except in case of death or resignation of the Attorney General) that the P resident may authorize “ the head of any other Department or a n y other officer in either Department, whose appointment is vested in the President, by and with the advice and consent of the Senate, to perform the duties of the vacant office until a successor is appointed. ”

III. S ection 180 of the Revised Statutes, referring to sections 177 and 179 (also section 178 which pertains only to bureaus), provides that “ a vacancy occasioned by death or resignation must not be filled under the three preceding sections for a longer period than 30 days. ” Since sections 177 and 179 contain the sole author ization to the President to designate someon e to perform the duties of the Depar tment whose head has died or resigned, the President is restricted to designating one of the persons therein described to act during the vacancy. He therefore has no authority to appoint to act during the vacancy a perso n who does not fall within the categories specified in sections 178 and 179. IV. The Opinions of the Attorneys General from 1880 to the present time have

construed the above

- mentioned sections to mean that in case of a vacancy occasioned by the death or re signation of the head of a department the President may not designate a person to perform the duties of such head for a period of more than 30 days.

* Editor’s Note: This summary, date d two days later, appears immediately after the full memora ndum opinion in the Unpublished Opinions of t he Assistant Solicitor Genera l.Filling the Vacancy Following the Death of the Secretary of War

45 V . The legislative history of the above

- mentioned provisions shows that orig inally the period during which the duties of a deceased or resigned head of a department might be performed by a person properly designated by the President was six months; that later the period was reduced to 10 days for the purpose of controlling appointments of President Johnson; tha t President Harrison protested the period of 10 days as too short; that thereupon an endeavor was made to repeal the restrictive legislation to permit the president to designate such officers to act for any length of time; that such endeavor was unsuccessf ul but the time was extended from 10 to 30 days

— the existing provision. VI. While the original duties placed upon the Secretary of Wa r by the act of August 7, 1789, “ to perform and execute such duties as shall from time to time be enjoined, on, or entruste d to him by the President of the United States

, ” might be performed by the President as C ommander in C hief of the Army during a vacancy in the office, subsequent legislation has from time to time imposed upon the Secretary of War specific statutory duties. Since it was not contemplated that the

President should in fact serve also as Secretary of War, it is at least doubtful whether the duties specifically imposed by the Congress upon the Secretary as such can be performed by one who is not in fact serving as Secretary.

VII. Since the intent of the Constitution and the above

- mentioned acts of Co ngress seems to be to require the President to appoint a successor to a deceased or resigned Secretary of War within 30 days from the time the office becomes vacant, failure by the President to do so within that time will probably result in criticism

of the President. VIII. Should the President desire not to appoint a permanent Secretary of War

un til after the convening of the next Congress, he could now appoint a Secr etary
of War and appoint another person as such af ter the convening of the Congress,

which latter appointment, if concurred in by the Senate

, ipso facto

, would vacate

the office as of the date the new appointment becomes effective

. Blake v. United

States

, 103 U.S. 227, 237 (1880)

. IX. If the President may appoint a S ecretary of War, it would seem that the President at his pleasure at any time may require his resignation and appoint someone else as Secretary of War to fill such vacancy.

GOLDEN W. BELL

Assi stant Solicitor GeneralSupplemental Opinions of the Office of Legal Counsel in Volume 1

46 September 25, 1936

M EMORANDUM FOR THE A TTORNEY G ENERAL *

Mr. Forster of the White House telephoned me this afternoon, advising that the President had concluded to appoint a Secretary of War to fill the existing vacancy. He inquired whether in preparing the commission it would be proper to insert in it a clause indicating that it was an “interim” appointment or restricting it to a certain time. I informed him that in my opinion it would not be proper for this to be done,

since there is no authority for the President to limit the term of one appointed to this office, and in view of the fact that after appointment, he is removable, in any event, at the pleasure of the President. There has been no call for a formal opinion, and I assume that final disposition of the matter has thus been made, unless it shall be later brought to your attention.

GOLDEN W. BELL

Assistant Solicitor General

* Editor’s Note: This follow

- up memorandum included a postscript: “Bell

—Your view is correct, I

am sure.

— HSC.” Presumabl y “HSC” was Attorney General Homer S. Cummings. On the same date,

President Roosevelt recess

- appointed Harry H. Woodring as Secretary of War to fill the vacancy left by the passing of George J. Dern on August 27, 1936.