The New York herald., 1866-09-20
the APPOINTING POWER.
Opinion of Attorney General
Stansberry.
The President Can Fill Any
Vacancy.
&c. &c. nc.
Arrorsry GrsraAl-s orFlcs Angus, 90 1903

cfs IN the prior the last session Of The Scna
and there was failure during the session 10 make per-
manent appointment by tho refusal OF the Senate
70 confirm the nominee, failure on the nonna
uon or other cause, the President caa make another
temporary appointment In tho present recess Tho
clause Of the constitution under which the auos.
ton arises IL as follows 1.-THE President shall
have power to MI up all vacancies that may happen
during the rocess OF the Senate by granting
commissions which shall expire At The OF their nest
session. From The facts stated Il not appear ha,
thore was vacancy until after the session was over
In the sequel shall again refer this position but A.
some cam thht the vacancy does happen within the
meaning Of the constitution before the recess proposc
70 consider the general question whether the President
can h up vacancy IN tho recess which existed 10 he
prior session.
am not Of any decision OF he Supreme Court
that has any direct bearing upon this question II has
however frequently beca passed upon by my
Mr. Writ in 1928. Mr. fancy in 1882, aud Mr Logare n
ls4i, concur IN opinion that vacancies Art occurring
during the session OF the Senate may bo filed by Pre-
sdent IN the rocess Nj. Mason Ia a short on mon
given 10 ls4b held that vacancies known 10 exist during
the session could not be filed in Tho recess; but In 4
more elaborate opinion wrftton Ia lst6, he expresses
general concurrence with hs three predecessor. An
these concuning opinions give construction 10 The
meaning of the words, I" Vacancies that may haupcn
during tho recoss OF the Senate aud, AZ understand
thom they agree that these words 10 confined
to vacancies which rst during tho roc,es hut may
apply 10 vacancies which nrst during the sees on
and continue ~ the recess II may be well this pont
70 BRING in review some OF the contin enccs which may
attend vacancy in the recess which Ir.t occurred
known until the rccoss-a contingency which
o,'en ., ,s,a oceq,s a y Tie death q incamoents
failure of the Senate 70 act upon nomination. Third
or upon nomination and confirmation where the party
70 nominated and confirmed rofso the recess 10 az
cept ne once Fo3Hh, or ny rejection OF the nom nee
Of tho President In the last hour OF tho scssion Firlh
% by the failure Of the Iresden 10 make minat
during the session. or after rejection ~ his nominee
You VII observe that have not put ii th.s category ths
ease stated "a your leterhet i 20 say, where alter an
appointment by President IL The recess AID NOM,
"A he
to confirm the nomination Of ef lime or any other
II clear that the vacancy which eAts afpr
the Adjournment ot the Senate can b, said to
have occurred dGrng the sea6ion The appointmcpt
nlls the office nnd The Language IL nc cousttuton II
that 1T shal oNple at the end thor next pesson
" WIS npou ois State Of facts that Mr. aaney gave his
opinion n ~! aud held on thu point that the vacancy
did take place ~ foccsa and that stle former ap.
ponirnent ft n.'l during the session. and Lcrc was
no vacancy they adJourncd.n Al this con
strncuon Ias t'h questioned 10 not propose
stop upon ll 'e'cr to place my opinion on other
ground indf nde = the question whether the vacancy
hTst occnrieu luFi ne SESSION dqring the recess
Those who ag the construction that Tho vacancy
10 DO hiled ~ the rciident NUT first the re.
cess claim thai such construction arises inevitably
6y fore q the words, "Ali yacanccs that may happen
during the recess Of tho Senate Thcy clam
thai vacancy which docs not rs, In the rcoesi
cannot be said 20 happen in the II - the point
Of Tune when vacancy begins that, they Fay, II 10 be
considered This Is one reading or tbs section
far as The mere letter concerned IL IL pcIhaps mott
opyious But if c1nlne oursclgen ID tlus
section alone and % Us literal ntcrpreaiio Ion, there
room for grave doubt The rubect matter = vacancy
IL implies dnraona condition oI things when
may exist fer period u time Can be- aid that the
word happen when applied TO sach subject,
u only property applicable 10 IT. BEGINNING III
this word s used IN reference 10 acton
event that takes place 2. a puncmai pont q
hour bat vacancy is not such an event II has a
,aoanec i, Is prccscy tts ns " NJ mn rSm 1c
beinnng 70 the end during the period of r. drauon
" We marx the time OF Tngle action we ray 4 hap
pcned at that time for II could be SAID to have
happened at any other; but whom speak 81 such
subject a. vacancy We must nsl some other torn
mar fq lU "A
every point Of time that u cxistA lcine to fLiuk
upon Tho mere words, that We might consirc them pro
c.soy the phrase werc ~ happens tAt therr h
a vacancy In the recess 10 vacancy happsns 10
exist In the rccosa This upon tho word. alone wns
the conhructlon m, upon this 40 toa by Nr wln and
since followed by all his successors in this offoe gho
have expressed an opinon the question. But
the rules of construction do not connnc he words
Of the section and DO not compel w % adopt consruc
ton according 70 the mere lotter Whfn We l0lk -
other sections Of this article and 20 the reason and
poiny of this enactment al nice cftc,sm must give
way 10 more enlightened construction. II = in tbe
MIans'hcus - .'tutif. p"NI ,At W ~ oHhtsr THIS
question. ftrt of all y ~ the President Who IL made
the recipient O this power. The graat IN these
words The executive power tha be vested Pres.
tdent ~ the United states p iiy another section Ii IA
provided thai he shall take that tie laws bo faith
fully executed NOW, 4 i the very ~ oxscu
two that u should always be capable ~ eteriro
The legislative power aud The ad cia power come Into
play at Intervals There are may be periods whom
there " legislature in sesslon 10 pas 80 and M
ia session administer The laws aud this with04t
public dctfmrBt but always and tho pseFor
10 execute the iws s on ought Ia Il M fnl 1890.
Tho President must ake care at all times that aw ~
faithfully executed Thcro Il poaE of time IN wheh
the power to enforce execute the aws may r.
anred and there should not be any pgsat of tlmo Or
interval in which that power dormant Icau1bo OF
aeiny Il 4 IL view q this necessy ua, another oauss
of this article npkcs careful provision against Vacancy
ia the once u President by providing that upoa ta
dsah, resignation o. removal o. ihe President from Office
the powers and duties shall desoiye uyon the We
President, and BY enJonins on Congress to make
further provision ia ea@e ~ the deaih of tho vica
rre-aeni A. . what ether oaesr shalt then set
M President until another ProsdcEt shall b.
elected n any ono pufpoee il manifest ia ne c1nsiita
uon, u any one policy y clearly apparent u ibat 10
far A. tho chief ~ foghan u executive poser j.
concerned there shalt be NJ cesasaou - lGiaftA n
time, when there may - ~ incapary ~ action bot
the President although the source orocHuSe u9.af
cannot crerclge u al Lmssf II IA compafAlisely bat
an inhultessiual part of al that u y b. iobe
cuted that he can perform NE mud at by tie a.eney
of obers Accordingly, 80 nnd ample provision H4ade
for THIS purpose. Tho executive pOssf vsetad
President IS the constitution has Ia many rsalasts ~
unlimited range, extending over lime n sAS sell
time n PEACE He - made Commander. 10 Chief N
The army and navy and q III stAle mnA ahlio aet
gal service " tho United State Al fDros rrlat
conducted ~ ofloers 81 bE naon =, ~ al
military ard naval oalesr. and nralY. our ciFH 1
tive are sth tho exception n nfsraf IN On .
he nDmnated ~ him No otDef bfRnth departs. a.
u The goserhincnt shares with tho Prs dsnl poser
= nominate y Z irHe ihai ihe ffs.idrn de- not
create tho ol1cos Tha q general i Iar 4 u,e legs
once and ne prov 200 by aN ~ lhe duties - - psf
formed ~ tho oFcff, AZ lpt pat te sceY in glafr
Tho lAw " etecution ~ inaitsf sbai may - 4is
cHstlty the IHWNf p l tLe usfs ~ Ffssi il thr
lasisatvs department ~ -, i equally tfae ibat n.
President could nai ctctate ~ daiiss q 10 ~
himself ~ cannot st AZ lafEe ~ paFflun the d4uss
~ manha Tlele Ike mlat eEfo 1850 frtecu taa
only te crccuiei W one aEflt- t4at Y z ay ~ 49,
place upon ne sonitai on X ias prrsltrnt @lea,
men, that TO Constitution tsFls the sstg8tfe
pouer IL tho rf.l f-bt uad vests h h.ai stoa4 !,
poser ~ appoint 1tetrs q stffe.t8 ubc tsef a.s,s
q9lfes n 6im ai0ne-n0g ~ C1ntftn - q, ~ s
that ~ t.As eafe thAi the as y srt, as4 bgase
Va rs.s seaa f.--sis - thes, gfo''.gEs 49,
stfaftfa SHEA | have mtltlenad, "a ibai tp@e