Year: 1866


A. ". Randall, Reconsideration. ..-ST;-l have
CONSIDERED the question when you have submitted
for my 0plniOn-that is TO cay, whether in cases
where at pointments have been mace of postmasters
in the IOI to the last session of the Senate,
and there was q TAI ure during the session t0imake
a permanent appointment, either by the refusal of
the senate to confirm the Bomnee failure TO act
on the nomination. or other cause, the PRESIDENT
can make another temporary appointment in the
present recess Che clause OF 20 Constitution
under which the question arissgis as folows;-" rne
President shall have power to NIL up all vacancies
that may happen during the recess OF the Senate,
by granting commissions which snail expire at the
end of their next session." From the facts stated
II does not appear that there was vacancy until
alter The session was over. In the sequel shall
apnin refer 10 this position but as some aim that
the vacancy does happen within the meaning of the
Constitution before the recess propose to CONSIDER
the general question whether the President can til
up vacancy in the recess which existed IN the
prior session.


i an moi aware of any decision of the Supreme
CourL that has any direct bearing upon this Ques-
ton. 1t has, however, frequently heen passed upon
by my predecessors Mr. Writ in 1928, Mr.. fancy
in 1882 and Mr Legare in 1S4l concur IN opinion
that vacancies first occurring during the session of
OF the Senate may be filed by the President in the
he d thar vacancies known to exist during the ses
sion could not be filled the recess; but in a
more elaborate opinion. written in iSie, ne
predecessors All these concurrng opinions
give construction to the meaning of
during the recess of the Senate" and, as under
stand them, they agree thav these words are not to
be confined to vacanc es which first occur during
the recess but may apply vacancies which first
occur curing the session. and continue IN the recess
1t may be v ell at tins point TO bring in review some
OF the contingencies which may attend vacancy in
the recess which first occurred during the sesslOn:
Flrst il may not become known until the Iecess-a
contingency which often occurs Uy the death of ins
cumbents at distant points. Second, it may have
occurred by the failure of the Senate to act upon
nomination.


THIRD, or upon a nomination Or confirmation
where the parry SO nominated ana confirmed re-
tuses in the recess, 10 accept the Office Fourth or
by rejection OF the nominee OF the President the
last hour of the session. Fifth by the failure OF
the President TO make nomination during the ses-
sion, or alter rejection OF his nominee. You will
observe that have put in this category the case
stated in your letter-that is 10 saw where after
appointment by the PRESIDENT IN the recess and
nomination ut the next session, there Is failure of
time any other cause. II IS not clear that the
cancy which exiss after the adjournment of the
Senate can be said to have occarTeo during the ses
SION


The appointment fills the Office and the language
OF the Constr ution is that 'lt shall expire at the
of their next session." 1t upon this state of
facts that MIR. fancy gave his opinion in 1882, and
held on this point that 'the vacancy did take
m, Mt continued during the session, and there was
no vacancy unti, the session adjourned" AS TINS
pose to stop upon it, but will proceed to advance my
opinion on other ground, independent of the Ques
| ton whether the vacancy occurred during the
session or during the recess.


IhOse who argue for the construction that the va.
cancy to be filled by the President must first occur
inevitably by 1Orce OF the word, "All vacancies
that may happen during the recess OF the Senate"





in the cannot be sald to happen the
ltls the point of time When a vacancy begins that
they is to be considered This is one reading of
this section, and far the mere letter is con-
cerned, 1t is perhaps the most obvious. But even If
conine selves to this section alone ana to its
literal interpretation there is for grave doubt.
The subject matter Is a vacancy. 1t implies dura-
tiona condition or state Of things which may exist
"happen," when applied to such assubject, Is only
properly applicable to its beginnlngs
If this word is used in reference to an action or
event that takes place at punctual point of time,
it must necessarily be confined TO that speca al hour
but a vacancy is not such event. IL has be-
ginning it is true; but 1t necessarily implies
| tnuance. 1t is precisely the same thing from the
| lion five mark the time of a single action, we
say happened at that time for 1t could not be SAID
to have happened at any other; but when we speak
| of such subject a vacancy, we must use some
| other tenn to mark lis BEGINNING; tor It may we'll
be said to happen at every point OF time that II
| that we might construe them precisely as If the
phrase weIe, 'if ithappens that there is vacancy
in the cess or 'If vacancy happens to exist in
the recess"


i his, upon the words alone. was the construction
| put upon this section by Mr.. Writ and since fol-
lowed by all his successors in this of6ce who have
expressed opinion on the question But the rules
| section, and do not compel us to adopt construc
ton according to the mere letter. When we look to
other sections of this article and to the reason anG
| policy of this enactment all nice criticism mus
give way to enlightened construction 1t is IL
the arrangement OF executive power that we Gu
dent who is made the recipient of this power The
| grant Is in these words:-"Ihe executive power
shall be vested in President OF the United states
BY another section 1t is provided that che shall take
care that the laws be faithfully executed" NOW I
is the very of executive power that 1t shouC
always be capable of eXerclse. Inc legislative
power and the Judicial power come into play at IN


There are or may be periods when there is nj
Legislature in session to pass laws and no court
| session TO administer the laws, and this withou
/ public detriment; but always and everywhere thu
power execute the laws is, or ought TO De In ful
exercise. The President must take care az all time
that the law be faithfully executed. There is NJ
point of time in which the power to enforce or exc
cute the laws may not be required, and thert
should not be any point oil time or nterVaii IN wnc
that power is dormant or incapable OF acting. 1t
in view of this necessity that another clause o
this article makes careful provision ,aganS ms
Vidipg that upon the death, reslRnation, or re
| moVal OF the President from Office the power
and duties shall at once devolye upon the wee
President ana by enjoming on Congress 70 max
further provision IN case of the death of the Vice
President as 10 what other officer shall then act a.
President until another President shall re eiecteu
Ifany one purpose is manifest In the Constitution,
any policy clearly apparent it Is that IN so ia
as the chief fountain of executive power is con
cerned, there shall be no cessation no interval
| time, when there may be an incapacitv of action
| but the President although the source OF EXecuuV
| power, cannot exercise II all himself IL Is com
paratvey but an ininltesimal part OF all that is :
| act by the agency of others. Accordingly, we nnC
ample provision made for this purpose.


The executive power vested IN the rres,demT ~


the Constitution has many respects, an uDllmlte


range, extending over time OF war as WEI. as unl
OF peace. He Is made C0mmander-in' Chet OF tn


y @nd navy 9ha Ha 81 tns ssse All our foree
relations are conducted by officers OF his nomina


lions so, too all our mill ary and naval othcersi ano
cia OF strictly executive, are with the exception
, some INFERIOR oftcers, to be nominated bY MN. n
! olher branch or department of the Governmen
shares villa the President this power 70 nominaLe
p 1t IL true that the President does not create th