Evening star. [volume] (Washington, D.C.) 1854-1972, 1866-09-20
APPOINTMENTS DURING THE REoEss

IMPORTANT OPINION OF THE ATTORNEY GEN-
ERAL.
Hon. Henry Stanbery, Attorney General of the
United States, has addressed an ably written
communication to Hon. A. w. RindaIl, Post
master General,i in ans wer to a question submit
ted for his opinion, e whether in cases where
appointments have been made of postmasters in
the recess prior TO the last session of the SEN
ate, and there was failure during the ses 5ion
TO make a permanent appointment, either by
the refusal OF The Senate TO confirm the nom
inee, failure to act ON the nominations or
other cause, the President can make another
temporary appointment in the present re-
cess
The Attorney General says that the clause
of the Constitution under which the question
arises is as follows -" The President shall
have power 10 fill up all vacancies that may
happen during the recess of the Senate, by
granting commissions, which shall expire at
the end OF the next session." and observes that
upon the facts stated Il does not appear that
there was vacancy until after the session was
over. In the sequel shall again refer TO this
position, but as some claim that the vacancy
does happen within the meaning of the Consti-
tuition before the recess, propose TO consider
the general question whether the President can
fill up vacancy in the recess which existed IN
the prior session. I am not aware of any
decision of the Supreme Court that has any
direct bearing upon this question. 1t has.
however. frequently been passed upon by nv
pItutCeSsOIc U1T. W lTt In isSb, MI. IanPV in
1892 and Mr.. Legare in 1S4l concur in opinion
that vacancies first occurring during the SEES
sion of the Senate may be filled by the Presi-
den, I'm the recess.
In this view the Attorney General concurs,
and brings in review several contin 90 nces
which may attend vacancy in the recess
which first occurred during the session, such
as the death of an incumbent at a distant point:
failure of the Senate to act on a nomination;
refusal of party nominated and confirmed to
accept the office; rejection of Presidents nomi-
nee in last hour OF session: or failure of the
President to make nomination during the
session or after the rejection Of the nominee.
As TO the case in point, at is not clear tn at the
vacancy which exits after the adjournment of
the Senate, can be said to have occurred du-
ring the session. The appointment fills the
office and the language of the Constitution is
that lit shall expire at the end of the next ses-
sion." There is no vacancy until they adjourn.
The Attorney General then takes the ground
that vacancy" implies duration, and that
the word ''happen" used in the Constitution
need not apply to the beginning Of a vacancy
any more than to any other period during the
time it exists. The words might be constr ued'
..Ifa vacancy happens to exist in the recess
This, he says, was the opinion Of his prede-
cessors ~
He then considers the spirit Of the section,
and concludes thatit confirms this construction
of the mere letter. Executive power is always
capable Of exercise. Legislative and judicial
power come into play at intervals. The laws
must always be executed. hence the careful
provision against a vacancy in the office of
President. But the President must act by the
agency OF others; and no other branch OF the
Government shares his power to nominate Of
ficers to see that the laws are faithfully exc.
cuted. He is held respon sible, and we could
hardly expect TO find his hands tied by a Sec
ton which would illustrate all these pro-
visions The evils which would grow out of
a construction based on the mere verbal re ad-
Ing are then shown at some length, such as the
case of foreign minister at distant court, in
critical juncture, whose office becomes vacant
but such vacancy is not known to the Pres
ident until after the adjournment Of Congress
Wherever there Is a vacancy there is power
TO fIl H. This power is in the President,
with the assent of the Senate, whilst that BODY
is in session, and in the President alone when
the Senate is not in session.
The Attorney General then proceeds ut some
length 10 controyert the position of those who
argue that to allow this would disappoint the
clear intent to give the Senate PARTICIPATION
in appointments to office, and does so very ef-
power Of removal belongs to the President
and then asks "What IS the difference between
vacancy which began in the session, or was
caused in the recess by the act OF the Presi-
deDtl" He then argues that the appointments
of the President are temporary only, because
he cannot fiji the office without the concurrence
of the Senate. He can only appoint until the
end of the next session of the Senate, which is
an ample provision to secure the Senate from
everything except an abuse by the President
OF his own constitutional powers of removal
and Of filling vacancies, by so exercising them
as to Illustrate the lntentio of the Senate. The
communication concludes thus: 81 am accord
ingly of opinion that the President has full and
Independent power to fill vacancies in the re-
cess of the Senate without any limitation as to
the time when they first occurred"