Evening star., 1920-06-18
DOUBT PRESIDENT
CAN FILL D. c. POST
DURING RECESS
Precedent Cited in Consider
ing Appointment of
Commissioner.

Has the President legal right un-
der the provisions of the Constitution
10 give recess appointment to DR.
John Van Schaick. jr.. or to any one
else I" fill the existing vacancy on
the board of District commissioners
Putting aside any precedents which
may exist. 1t is said that there is Sc
rlous doubt to the Presidents right
TO appoint any one during the present
recess OF the Senate as District Com
missioner The Constitution author
izes the President to make appoip,
ments to fill vacancies in office which
may happen during recess of Tho
Senate, and the commission 50 ;ssuad
may run until the close of the follow
ing session of the Senate The entire
question as to the Presidents right 70
make recess appointment to fll tho
existing vacancy on the board Of Com
missioners rests upon the interpreta
ton OF the phrase may happen"
Vacancy since Noyemper.
The vacancy first existed whom
tiwynn Gardiner resigned on Noyem-
Der "a. 1919. The Senate was then in
recess u reconvened. however, the
nrst Monday in December. The Presi-
dent made no appointment until De-
cember is. when he sent the nomina.
uon OF DIR. Van Schaick TO the Sen
a't. ma, nomination was rejected by
a vote of the Senate seven days he
Tore the Senate adjourned
Inc right of the President to fill va
cahcies existing during the recess Of
ihe senate was considered at length
IN the case of district attorney Of
the fnited States. in the district court
OF the United States. The eastern dis.
trict of Pennsylvania The opiniop
was handed down nv Judge Cadwal-
ader. the district Judge on October g.
1859. In this ease the term Of Office
for which Charles Giipin. district at
,orney. whose duration was limited
by law. expired when the Senate was
in session No appointment in which
the Senate coneurred was made at
that session and the President In the
ensuing recess appointed John p
y Neil giving him temporary ap-
pointment as United States attorney
for the eastern district of Pennsyl-
vania.
The question depended principa1lv
upon the effect of two clauses Of the
Constitution. One Of them provides
that the President shall nominate
and. by and with the advice and con-
sent of the Senate. shall appoint all
officers whose appointments are not
otherwise provided for in the Con-
stftution. and which shall be estab-
iiShed by law. The other clause pro-
vides that the President shall have
power to fill all vacancies that may
happen during the recess of the Sem
ate by granting commissions which
shall expire at the end of the next
session.
Three Questions Considered.
: .Three~ansstspss-~ssssstaasaa
consideration by the court I'm this
case. the first of which was whether
the President had during recess of
the Senate made a temporary appoint
ment to fill vacancy in office in
case in which the Senate had been in
session either when or since the va
cancy first occurred.
Judge Cadwalader in his opinion
said: Upon the whole I am Of the
opinion that Mr.. O'Neill is not a right
full incumbent Of the Office
Tn his recapitulation the Judge said
regarding the first question: There
has not been opportunity for judicial
contestation. The existence of the
power in question has not been legis-
latively recognized. has been denied
by the Senate. has been practically
asserted by Presidents only, and has
not been exercised without constantly
recurring suggestions by them of
doubts of its existence under the Con-
stitution, opinions of the Attorney
Generals have been its only support
and in these opinions other jurists of
eminence have not concurred.
All this might have been said in
language more decidedly showing
that whenever directly litigated. this
question will be quite open for Judi
cial contestation. At present / cam
not answer it affirmatively'
Never Brought Before Court.
Inquiry fails to show that this case
of the district attorney or any other
involving the right of the President
to make recess appointments to fill
vacancies that existed during a ses-
sion of the Senate had ever been
brought before the United States Su-
preme Court.
In his opinion Judge Cadwalader
said. in part:
Those on the affirmative side con-
tend that the provision of the Con-
stitutlon must be understood as en-
q abling the President to grant a tenn
porary commission whenever there
may happen to be a vacancy during a
recess Of the Senate. whether the
Senate was or was not in session
when the vacancy occurred or has or
has not been since the session The
argument is that the words may
happen can be understood as mean
ing not happen to occur but happen
to exist.
objection to Extension.
There are serious objections to so
broad an extension of the presidential
power in question. Such an exten-
sion of il. if established. would en-
a BILE the President to do indirectly
what the Constitution does not per
NIT him to do directly.
His appointments during recesses
of the Senate might be so made and
THAI they could not probably
be called temporary. They might.
however, be withdrawn from con-
of the Senate. Thus. he
might. though the Senate was in ses-
sion when the vacancy first occurred,
or had met since IL occurred. appoint IN
the recess an officer who would be
to the Senate il in ses-
sion. might in disregard or disfayor
of The Senate. continue Kim in Office
This might he done by
successive appointments and reap |
at every recess. until the
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