32

Filling the Vacancy Following the 

Death of the Secretary of War

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

thirty 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.

There is some doubt 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 any other person not 

serving as the Secretary of War.

September 21, 1936

MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

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

of a successor to the late Secretary of War.*

The Act of August 7, 1789, ch. 7, § 1, creating the Department of War, provides:

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 perform 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 subsequent legislation relative thereto has been enacted. The appointment of the 

Secretary is therefore left under the provisions of Article II, Section 2 of the 

Constitution, which, in prescribing the duties of the President, provides in part:

[H]e shall nominate, and by and with the Advice and Consent of the 

Senate, 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* Editor’s Note: The version of this opinion that was transcribed in the Unpublished Opinions of the 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 contained a footnote here cross-referencing another short memorandum 

regarding the President’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 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.

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 otherwise directed by the President, as provided by section one hundred 

and seventy-nine, perform the duties of such head until a successor is 

appointed, or such absence or sickness shall cease [§ 177].

In any of the cases mentioned in the two preceding sections, except 

the death, resignation, absence, or sickness of the Attorney-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 consent of the Senate, to perform the duties of the vacant office 

until a successor is appointed, or the sickness or absence of the incumbent 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 Statutes, 

however, is temporary only, and section 180 (as amended) reads as follows:

A vacancy occasioned by death or resignation must not be temporarily 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 temporary 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. (Section 178 pertains only to bureaus.)

In an opinion dated December 31, 1880, Attorney General Devens, replying to 

a letter of the Secretary of the Treasury 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 the
Supplemental Opinions of the Office of Legal Counsel in Volume 1

34

Revised Statutes, expired the day before, and inquiring 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 office of the Secretary of the Navy created by the resignation of Hon. 

R.W. Thompson cannot be filled by designation of the President beyond the period of ten days. This power of the President is a statutory power, and we must look to the statute for its definition. An examination 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 President, 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 exhausted, the President is remitted to his constitutional power of appointment. 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 Secretary of the Navy.

Appointments Ad Interim, 16 Op. Att’y Gen. 596, 596–97 (1880).

In an opinion to the President dated March 31, 1883, Attorney General Brewster, construing sections 177, 178, 179, and 180 of the Revised Statutes with 

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

deceased, said:

[T]hose sections have received an interpretation by Mr. AttorneyGeneral Devens, as appears on reference to volume 16 of AttorneyGenerals’ 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. When the vacancy is thus temporarily filled once for that period, the power conferred by the statute is exhausted; it is not competent 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, 17 Op. Att’y Gen. 530, 530–31 (1883).

In an opinion to the President dated September 11, 1884, rendered in connection with the death of Secretary of the Treasury Folger, Attorney General Brewster, referring to his former opinion of March 31, 1883, submitted upon the death 

of Postmaster General Howe, affirmed that opinion and advised that the conclusions therein applied to the case under consideration. Performing Duties of Vacant 

Office, 18 Op. Att’y Gen. 58, 58–59 (1884).

In an opinion to the President dated January 31, 1891, rendered in connection 

with the death of Secretary 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 office may be filled, either by the statutory succession provided in section 177, or the designation by the President provided in section 179, 

or by both.

Vacancy in Head of Departments, 20 Op. Att’y Gen. 8, 9 (1891).

At and prior to the 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 Act 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 Undersecretary of State advising that the 30 days of his 

incumbency as Acting Secretary of State 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 is appointed,” this language must be construed in connection 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 acting 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 

pending 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 subject to review by the 

courts.

Vacancy in Office of Secretary of State, 32 Op. Att’y Gen. 139, 141 (1920).

An examination of the legislative history of the act of February 6, 1891, changing the limitation in section 180 from 10 days to 30 days, is instructive. The 

opinion of Attorney General Miller advising 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 occasioned 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 duties 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 indelicacy. The President should not be required to take up the question 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 onehalf of the brief time allowed is gone before, with due regard to the 

decencies of life, the President and those with whom he should advise 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 geographical limitations are practically imposed by the necessity of selecting 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 Secretaries of the Department wherein the vacancy exists might not discharge the duties of Secretary until a successor is selected, confirmed, and qualified. The inconvenience of 

this limitation was made apparent at the time of the death of Secretary Folger. President Arthur, in that case, allowed one of the Assistant 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 duties for a further 

term of ten days, and then made a temporary appointment as Secretary, 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 permit the first or sole Assistant, or, in the case of the Treasury Department, where the Assistants are not graded, that one who may be designated 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. McKinley introduced a bill 

(H.R. 13453) to amend section 180 of the Revised Statutes to read as follows:

A vacancy occasioned by death or resignation must not be temporarily filled under the three preceding sections for a longer period 

than thirty days.

22 Cong. Rec. 2064 (Feb. 2, 1891).

When motion to suspend the rules and pass the bill was seconded by Mr. 

McMillin, the bill was by unanimous consent considered and passed by the House 

without being referred to a committee. Id. at 2065. Mr. McKinley, in presenting 

the bill, stated:

[T]he President of the United States on last Saturday sent a message 

to the House of Representatives, as well as to the Senate, calling the 

attention of Congress to the fact that under existing law he could 

designate an officer 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 message in question and are aware of the occasion which led to its 
Supplemental 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:

Sec. 180. A vacancy 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:

Sec. 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.

Section 180 limits the power of the President to appoint a successor until a permanent appointment is made and confirmed by the 

Senate, limiting it to a period of ten days, in which time the appointment must be made.

Now, this bill follows the language of section 180, which is in the 

same words, except that we insert “thirty” instead of “ten” days, so 

that it gives the President thirty days’ time within which he may designate a head of a Department to hold until his successor is qualified 

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 President’s message and am unable to see how he can reason as he does 

to reach the conclusion at which he has arrived. The principal part of 

the message is taken up with a statement that it is indecorous 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 should 
Filling 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 period of ten days is a limit too short for the action which may be necessary in the appointment of the head of an Executive Department, 

and the Chief Executive might 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 which reported an amendment striking out all after the enacting clause 

and thereafter considerably revising sections 177, 178, and 179 of the Revised 

Statutes 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 

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

be some limitation. We all know that gentlemen are selected for assistants of these Departments, for the great Treasury Department, 

and there might be some question as to whether favorable action was 

to be 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 any 

length of time.

. . . .

MR. HALE. I should be very glad to have the Senator who reports this bill state to the Senate what reasons there were 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 defined and was the subject 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 Senator from Vermont and sought to be put through now certainly without my being able to understand 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 in the statute book now relating to this subject, and 

have come to the conclusion, without reference to the bill introduced

into the Senate, which I had not seen nor heard of till this morning, 

that all that is necessary either for permanent legislation or for this

exigency is to enlarge the period within which authority for temporary appointment is needed. This I understand now has been provided for by a bill which passed the other House, simply by substituting 

the word “thirty” for “ten,” as the statute now 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 committee. Instead of making the term thirty days, an Assistant Secretary 

is appointed who shall hold indefinitely until the President shall have 

selected a Secretary. That is the difference between the House bill 

and the Senate amendment, 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 

the Senate, 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 Senators 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 President 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’ limitation, 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 Finance the reasons they have to give for extending the time indefinitely; 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 expected or desired 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, however, is that originally in the very first act passed upon this subject, during General Washington’s Administration, six months was the limit.

MR. MORRILL. It was.

MR. GORMAN. I understand from the Senator from Vermont 

that I am correct in that statement. Congress was jealous about this 

matter and would not permit a designation to extend beyond the period of six months. So we ran along until we came to the exciting 

scenes during President Johnson’s Administration, when the majority 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 period until now we have had a great many cases where the Administration, 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 idea 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 President. It is the law which provides it. Therefore, in my opinion, 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 on 
Supplemental 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 vacancy 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 more than ten days, who held in one instance under the law 

that the Assistant Secretary could only act for ten days, which I think 

is a great mistake; but as the committee has reported this amendment, instead of leaving the law to operate upon the Assistant Secretary 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 Senate. Id. at 2079. From this 

action by the Congress under the circumstances existing, and especially in view of 

the discussion of the bill and the proposed Senate Finance Committee amendment 

on the floor of the Senate, it seems clear that Attorney General Miller’s construction 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 acting secretary 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 

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

Section 2 of the Constitution 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 Act 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 President of the United States,” 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, title 5, 

U.S. Code; to title 32, U.S. Code, relating to the National Guard; 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 

performed by any person not serving as Secretary of War.

Moreover, it seems to me that the Constitution and the acts of Congress together evince the intent that the President shall appoint a successor to a deceased or 

resigned Secretary 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 persistently 
Filling the Vacancy Following the Death of the Secretary of War

43

sought to create the impression that the President has no regard for the Constitution 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.

Should 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 President of a new Secretary of War, concurred

in by the Senate, would ipso facto vacate the office as of the date the new appointment became effective. See Blake v. United States, 103 U.S. 227, 237 (1880). 

If the President may appoint a Secretary 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.

It may be that the President could, if he so desired, designate the person appointed at this time as Acting Secretary of War, as an indication that the appointment was to be in the nature of a temporary one. Such an appointee would, 

however, in my opinion, be Secretary 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, confirmation 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 General
Supplemental Opinions of the Office of Legal Counsel in Volume 1

44

September 23, 1936

SUMMARY OF MEMORANDUM OPINION FOR ATTORNEY GENERAL*

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

“there shall be a principal officer therein, to be called the Secretary 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, Section 2 of the Constitution under which the President “shall nominate, and by 

and with the Advice and Consent of the Senate, shall appoint” the Secretary of 

War.

The same section provides that “[t]he 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.”

II. The only statutory authority for the President in the event of the death or 

resignation of the head of a department 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 until a successor is appointed”; and the latter (except in case of 

death or resignation of the Attorney General) that the President may authorize “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 consent of the 

Senate, to perform the duties of the vacant office until a successor is appointed.”

III. Section 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 authorization to the President to designate someone to perform the duties of the Department 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 person 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 resignation 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, dated two days later, appears immediately after the full memorandum opinion in the Unpublished Opinions of the Assistant Solicitor General.
Filling the Vacancy Following the Death of the Secretary of War

45

V. The legislative history of the above-mentioned provisions shows that originally 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; that 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 unsuccessful but the time was 

extended from 10 to 30 days—the existing provision.

VI. While the original duties placed upon the Secretary of War by the act of 

August 7, 1789, “to perform and execute such duties as shall from time to time be 

enjoined, on, or entrusted to him by the President of the United States,” might be 

performed by the President as Commander in Chief 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 Congress 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 

until after the convening of the next Congress, he could now appoint a Secretary 

of War and appoint another person as such after 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 Secretary 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

Assistant Solicitor General
Supplemental Opinions of the Office of Legal Counsel in Volume 1

46

September 25, 1936

MEMORANDUM FOR THE ATTORNEY GENERAL*

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.” Presumably “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.