The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-07-03
An Opinion from Attorney General Brewster
Showing the Unconstitutional Charac-
ter Of the Proposed Measure,
And Holding that It Interferes with the
Executives Appointing Power.
The Veto Read in the House and the Bill I'm
mediately Repassed by a Vote Of 1853
tO7S-0ther Washington News.
THE F1rz JOHN PoRrER BILL.
Argument by the Acknowledgement Showing
Its Unconstitutional Character.


WARRINGTON July 2-Attorney general
Brewster submitted to the President, to day, in
compliance with the latter's request, long and
carefully prepared opinion upon the billf for the
restoration Of Fitz John Porter to the army, in
which he expresses the opinion that the bill is
clearly unconstitutional He says, in part
Whatever powers Congress has upon the
subject Of appointments in the army must be
derived from some one or more of the following
clauses of the Constitutions:
.'The Congress shall have power to declare war
ETC.; to raise and support armies; to make rules
for government and regulation of the land and naval
forces to make all laws which shall be necessary and
proper for carrying into execution the foregoing
powers, etc. Section 9, article IL
HBut another clause of the Constitution de-
clares that the President shall nominate and,
by and with the advice of the Senate, appoint
ambassadors and all other officers of
the United States whose appointments are not
herein otherwise provided for, and which shall
be established by law, etc. (Section 2, article q
This is power expressly given the President by
the same instrument which gives Congress the
for the government and regulation of the land
forces etc. From the foregoing powers con-
ferred upon Congress the power to designate by
law a person to fill military Office cannot be
implied, since this would be in direct
conflict with the power Of appointment expressly
given the President as above. Regarding the
bill as imposing, or attempted to impose upon
the President a duty to appoint the person desig-
mated therein, it is without any support in the
Constitution. 1t is an assumption of implied
power which is not based upon any express pow
ers and clearly invades the constitutional rights
Of the President Congress has no right TO
enact as law that which will be Intellectual
1t cannot advise or counsel 1t must make laws
that are rules Of action, not expressions Of will
that may or may not be followed. Counsel is q
matter ofpersuasion; law matter of injunction
Counsel acts upon the willing law upon the un-
willing also (Blackstone's Commentaries "A. ]
If, then, this bill be an injunction commanding
the President to appoint, it is usurpation, and
if it be only counsel it is without the essential
element of law. and Congress can enact nothing
but that which is to have the full effect of law
But again, the bill is subject to objection
upon the ground that Congress thereby, in eff
feet creates an Office only upon condition that
it is to be filed by the particular
individual named If this principle were
adopted generally in the creation Of offices, it
would obviously result in constraining the ap-s
pointing power to accept the condition imposed
and fill the Offices with the individuals designa-
ted by Congress, thus frustrating the design of
the Constitution, which is that officers must be
alone selected according to the Judgment and
will of the person and the body in whom the
powers Of nomination, advice, consent and APP
pOintment are vested. y