Year: 1866

III.
of a ma rsb al These, like most executive powers,
can only he executed BY one agent-that IS to say,
by The DESIGNATED officer; and this officer can only
bo mt in place upon the nomination of the Presi-
dent. When, then, we see that the Constitution
vets me S b PU%S5 70 10 'ns sppoS to
~ ercise the power and req Tres of him aone-0or
Of Congress nor the Senate-that he take care that
ri O avs be faithfully executed, we would hardly
eA pect TO fnd his hands tied by O section which
would frustrate ali these provlsions. And yet this
Is the necessary result OF the verbal construction
Which 1 have mentioned; TOR that construction
prevents the President from hlnng any vacancy IN
any SSe STr1g ne rs oss1ps E IN the recess


Now, when the Constitution guards with SO mucn
care against vacancy in the once OF fiesloent,
which the President can act there is found pro-
VISION exactly contrarlwise-that vacancy IN such
agency RhaIl continue, and that, for time, longer
OF shorter there is no power to It, matter what
may be the emergency, or how much the punhc
interests NAV suer2 In other words, TO go accord
ing 10 TINS verbal reading, there may be times when
the Executive power IS dormant and must remain
dormant, times when the President cannot act hin-
self and cannot appoint any officer to act and during
which the execution OF the laws so far suspended
lake as an example the case of foreign munster at
q istant court, charged with the most important
duL .es, pressing tor attention at critical conjunc-
tuIC, whose office becomes vacant by his death
during the session of the Senate but the vacancy
not known by the President until arter the adjourn
M nt


HeIe is an instance of a vacancy which first occurs
during the session, anu which upon tuls consruc-
non cannot be filed IN the recess. lake another
example-the death of a head OF department just



out time Tor new nomination or the rejection of
the nominee followed by an adiou fnment. Is the
President to be LETT during the recess to carry on
the Government without tue very aid contemplated
by the Constitution l might multiply cases to
show the consequences to " hich the verbal con-
struction leads, out prefer to rest the question
upon higher grounds. The true theory of the Con-
stitution in this particular seems to me to be this -
That TO the executive power, it is always to be IN
action, or in capacity for action and that to meet
this necessity there is pr lection against vacancy
in the chief executive office and against vaca ces
oil fbp pgIthO DINA n
10 power to fill such vacancies It's the President
whose duty II is to see that the vacancy is filled


the Senate IS session they must assent TO his
l lomlnatlon. If the Senate is not in session the
President fills the vacancy alone All that is to
be looked to is that here is a vacancy, no matter
where 1t first occurred, and there must be power
to ill It. Ii it should have been filled While the
Senate was ia session, but was not then hled that
ssIon no excuse Tor longer de ay, for the
pubic eXlgencv which requires the officer may be
cogenI and more cogent during the recess than
during the session. repeat it, wherever there IS
vacancy there is power to fill it. This power is in
the President with the assent oil the Senate while
that body is IN session. and in the President alone
wren the Senate IS not in session There is no
reason upon which the power to fl vacancy can
be limited by the state of things when it first oc
Cured On the contrary, the only inquiry is as to
the state OF things when it Is filed. For instance
take the case of vacancy VIII ch does first occur
during recess, but is not filed when the session
begins.


Il the verbal construction is sound, such va
cancY may be filled by the President without the
consent OF the Senate while the Senate is IN session.
but no one maintains that position. All admit tDat
Whenever there IS vacancy existing during the
session, whether 1t first occurred in the recess
after the session began the power to fill requires the
concurrent action of the President and Senate. II
seems q necessary cOrolary to this that where the
vacancy exists IN the recess whether 1t first oc-
CURED in the recess in the preceding session,
power to fill is the President alone. If during
the recess che power not the President 1t
where, and there is a time when for season the
President is required to that the laws are exc
cuted and yet denied the very means provided tor
their execution. II Is arGued by those who deny
this power to the President, that to allow it would
disappont the clear intent TO give the Senate par
ticIpatIon in appointments 10 office


1t Is said that ii the President by his act
fill a vacancy which occurred during the session, he
may, If 50 disposed, wholly omit to nominate an
ofhcel during the session, and leave all such
cies open and then fill them in the recess I'm
GOubtedly the President may do all that and may
intentionally abuse his power. The answer to TINS
objection Is obvious. In the first place, 1t may be
said that arguments against the existence of power
founded on IFS possible aDuse not satisfactory.
Ii they were, then objection against any control
| by the Senate over the Presidents appointments
| would be equally cOgent, for may imagine that
the Senate might refuse to consent to every appoint
made bv the President, or to any appropriation
to pay The salaries of officers and thus leave the Exc
cut%e without power to execute the laws. In the
second place, II this argument founded on the possi-
Die abuse OF power. is sound, then 1t may equally
| well be urged against the power of the President
to make removals, for 1t may be imagined that after
the adjournment of the Senate the President, the
recess, may every officer CIVIL and military
whose tenure OF Office not during good behavior,
anu mus create vacancies IN the recess, all to be
mens are TO continue until the end of the next ses
| sion OF the senate, the President might omit 10
| make any nominations TO the Senate and then In
the ensuing recess reappoint the sam or other Off
GERS, and thus throughout his term of office defeat
entirely anv participation on the part of the Senate
| take it Tor granted that this un limited over OF
removal belongs to the President, though am
quite we'll aware that some are still found to deny
| 1t, and to reIterate arguments used without avail


for nearly eighty years. and to keep open question
| settlen by usage from the commencement of the
| Government. This very power of removal comes
with signal force in aid Of the DO wer of appointment
| h the President can make a vacancy at all lImes
he muet have the correatiFe power to fill the vacancy
at ali times. TO AVOID the mischief of bad office
he had at all times the power to create vacancy


but IT may be as great, perhaps greater mischief,
TO have vacant Office or no Office at ALL than TO
have bad or inefficient officer. Why, then allow
hm at all times the power to correct the mischief OF


ad officer by removal, and deny him the power
an appointment The argument against the power
OF the President to fill a vacancy in the recess
which legan in the session, founded on sup


po ed intent to guard from usurpatIon by the Pre-.
sloenU the proper authority OF the Senate amount
TO nothing when we consider how thoroughly this
may be done under the power OF removal; for what
is the difference between a vacancy which began in


he session. or was caused in the recess by the act


And it, by the power of removal, all the appoint.
ments may be usurped by the President, why look
for guards in only one particular, and such guard
as creates perhaps greater mischief than it pre-.


vents? For 1t seems greater evil to be without


officers altogether than to have officers who hold


only by the temporary appointment of the Pres


dent. L say by the temporary appointment of the


President for strict language the President can


not invest any officer with full title TO the office


without the concurrence OF the Senate Whether


the President appoints the session or in the recess


he cannot and does not fill the Office without the


concurrence of the Senate He may fill the vacancy


In the recess but only by an appointment which


lasts until the end OF the next session. For instonce


in filling the office OF Judge whose tenure is in effect


for life, his appolntee can only hold for fraction


time. So, too, in the case OF a marshall whose regu


lar term Is four years, the officer appointed 10 fill the


vacancy can scarcely mold for an entire year.


| Here then, is the sale and only guard which pro-


tects the just rights of the Senatethe express pro