The Appointment and Removal of William J. Marbury and When an Office Vests

INTRODUCTION I. A STRATEGY OF REMOVAL AND REAPPOINTMENT II. FIVE THEORIES OF WHEN AN APPOINTMENT VESTS A. By the Advice and Consent of the Senate B. After the Senate Consents, But Before Commissioning C. Commissioning D. Delivery E. Acceptance III. THE MAKING OF APPOINTMENTS UNDER THE CONSTITUTION A. The Discretionary Theory of Appointment B. The Discretionary Theory Applied to Other Provisions C. Restrictions on the Rule of Appointer Discretion D. The Functions of Commissions E. Congress, the Senate, and the Vesting of Appointments F. Reconsidering the Theories of Appointment IV. THE MARBURY APPOINTMENT REVISITED CONCLUSION APPENDIX A ABSTRACT Scholars have ignored the most important question in one of the most famous constitutional law cases, obscuring the machinations that spawned the dispute. This Article sheds light on the events that precipitated Marbury v. Madison and also explains when an appointment vests. Thomas Jefferson famously refused to deliver a commission to William J. Marbury, causing the latter to seek a writ of mandamus from the Supreme Court. The received wisdom supposes that Jefferson's refusal rested on the grounds that Marbury had not been appointed a justice of the peace precisely because he never had received a commission. In fact, Jefferson's delivery argument was a post-hoc rationalization, having nothing to do with his actions in March of 1801. John Adams's midnight appointments incensed Jefferson, leading the new President to treat all of the justice of the peace appointments as nullities. To Jefferson, the failure to deliver commissions to some of those appointees mattered not a whit. What seems to have been far more significant is his sense that the justices of the peace served at his pleasure. Acting on this belief, he simultaneously removed them all and recess-appointed most of them, save for more than a dozen, including William J. Marbury. This Article also addresses whether William J. Marbury and the other midnight appointees who never received their commissions were nonetheless appointed, considering five theories of when an appointment vests: when the Senate consents; after consent but before commissioning; when commissioning occurs; with the delivery of a commission; and with acceptance of the office. In the course of considering these theories, the Article discloses the surprising fact that Thomas Jefferson, as Secretary of State, endorsed the second theory, namely that appointments vest before the act of commissioning. Moreover, well before Marbury v. Madison, the Adams Administration likewise concluded that appointments could vest prior to any commission being issued or delivered. Despite this convergence, the Article contends that none of the five theories is correct because each reads the Constitution as enshrining a single answer regarding when an appointment vests. There is no single answer. Rather an appointment vests whenever the President determines that it shall. The Constitution grants power to the President to appoint, never precisely specifying when or how an appointment vests. By not specifying when or how appointment is made, the Constitution leaves it to the President to decide the manner in which he appoints. This conclusion derives from a general principle of constitutional law: When the Constitution grants power to an entity but does not specify the precise means by which it will be exercised, the grantee may decide the means of exercising it. INTRODUCTION Scholars have dissected Marbury v. Madison ad nauseum. They have trained their energies on the broader battle between the Republicans and Federalists, what mistakes Chief Justice John Marshall made in his opinion, whether leaving the jurisdictional issue for last was deviously brilliant, and whether he concocted judicial review. (1) Missing from these works is any sustained analysis of the question foremost in the minds of William Marbury and John Marshall: Had John Adams appointed Marbury prior to leaving office? …