Sec. 2.-Powers and Duties of President Cl. 2.-Treaties citizens. A rule of equality thus established stands on the same footing of supremacy as the Federal Constitution and laws, can not be rendered nugatory in any part of the United States by municipal ordinances or State laws, operates without the aid of legislation, State or national, and is to be applied and given authoritative effect by the courts. A treaty is to be liberally construed; when two constructions are possible, one restrictive of rights that may be claimed under it and the other favorable to them, the latter is to be preferred. Asakura v. Seattle, 265 U. S. 332. In absence of treaty, capacity to inherit land within a State depends upon law of that State. Sullivan v. Kidd, 254 U. S. 433. So far as treaty provisions can become subjects of judicial cognizance in the courts, they are subject to such acts as Congress may pass for their enforcement, modification, or repeal; but Congress can not organize boards of revision to annul titles confirmed under a public treaty. The abrogation of a treaty can not affect property rights already vested under it. Head Money Cases, 112 U. S. 599. Chinese Exclusion Case, 130 U. S. 602. With the Indian tribes.-The power to make treaties with the Indian tribes is coextensive with the power to make treaties with foreign nations. U. S. v. Whiskey, 93 U. S. 197. See also Dick v. U. S., 208 U. S. 340. Holden v. Joy, 17 Wall. 242. Ex parte Crow Dog, 109 U. S. 567. Lone Wolf v. Hitchcock, 187 U. S. 553. Conley v. Ballinger, 216 U. S. 84. The setting apart by treaty with the Indians of the lands for their occupancy is of itself a withdrawal of their character as public lands. Missouri, etc., R. Co. v. Roberts, 152 U. S. 114. See also New York Indians v. U. S., 170 U. S. 1. Jones v. Meehan, 175 U. S. 1. Francis v. Francis, 203 U. S. 233. Chase v. U. S., 256 U. S. 1. Gilpin v. U. S., 256 U. S. 10. Appointment of Officers In General The Constitution for purposes of appointment very clearly divides all its officers into two classes. The primary class requires a nomination by the President and confirmation by the Senate. But foreseeing that when officers became numerous, and sudden removals necessary, this mode might be inconvenient, it was provided that, in regard to officers inferior to those spe Sec 2.-Powers and Duties of President Cl. 2.-Appointment of Officers cially mentioned, Congress might by law vest their appointment "in the President alone, in the courts of law, or in the heads of departments." U. S. v. Germaine, 99 U. S. 509. "He shall nominate " means to recommend in writing; in this form the advice of the Senate is asked. "Nominating" and "appointing" are distinct acts from commissioning; when the appointing power has done everything to be performed by him the appointment is complete. Officers whose duties are extended by Congress need not be again nominated and appointed. The President can not make a temporary appointment during a recess, if the Senate was in session when or since the vacancy occurred. Marbury v. Madison, 1 Cranch 154. Case of District Attorney, 16 Am. Law. Reg. 786. U. S. v. Kirkpatrick, 9 Wheat. 734. The delivery of the commission is not necessary to complete an appointment; the commission is merely evidence of the appointee's title and not necessary to its vestiture. Once issued, the commission is conclusive evidence of appointment as against the appointing power. When the appointment to an office is complete, it is irrevocable whether the commission has been delivered or not. Marbury v. Madison, 1 Cranch 154-162. Ambassadors, Public Ministers, and Consuls The claim that Congress is without power to vest in the President the appointment of a subordinate officer called a vice consul, to be charged with the duty of temporarily performing the functions of the consular office, disregards both the letter and spirit of the Constitution. Although the Constitution requires that consuls be appointed by the President, "by and with the advice and consent of the Senate," the word "consul" therein does not embrace a subordinate officer like that of vice consul. The appointment of such an officer is within the grant of power expressed in the same section, thus: "but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments." U. S. v. Eaton, 169 U. S. 343. In general.-Appointments to office can only be made by the Executive in the manner provided and not by congressional enactment, and Congress can not by law designate the person to fill an office; but Congress may authorize a particular officer to perform a particular duty or may extend the duties of officers, and Congress may retire an officer or may change his rank on the active or retired list without conflicting with this clause. The Sec. 2.-Powers and Duties of President Cl. 2.-Appointment of Officers Constitution does not allow Congress to vest the appointment of inferior officers elsewhere than in the President alone, in courts of law, or in the heads of departments, but when Congress does vest the power in any of these agencies it may restrict the power of removal. Wood's Case, 15 Ct. Cl. 151; affirmed in 107 U. S. 414. U. S. v. Ferreira, 13 How. 40. Kentucky v. Dennison, 24 How. 108. U. S. v. Perkins, 116 U. S. 485. The civil service law never contemplated any interference with the President's power of removal. Flemming v. Stahl, 83 Fed. 940. To prescribe qualifications and conditions.-Appointees must comply with conditions prescribed by statute. U. S. v. Le Baron, 19 How. 78. To vest appointments "in the heads of departments."-The Congress may by law vest the appointment of such inferior officers as they may think proper in the President alone, in the courts of law, or in the heads of departments. U. S. v. Germaine, 99 U. S. 511. U. S. v. Hartwell, 6 Wall. 393. To vest appointments "in the courts of law."-Congress had the right to invest the District of Columbia courts with the power of appointing commissioners. Rice v. Ames, 180 U. S. 378. Selection of appointing power in discretion of Congress. It is no doubt usual and proper to vest the appointment of inferior officers in that particular department to which the duties of such officers appertain, but there is no absolute requirement to this effect in the Constitution. Ex parte Siebold, 100 U. S. 397. By and With the Advice and Consent of the Senate The dismissal of an officer of the Army by the President creates a vacancy which can be filled only by a new and original appointment, to which, by the Constitution, the advice and consent of the Senate are necessary, unless the vacancy occurs in the recess of that body, in which case the President can grant a commission to expire at the end of its next succeeding session. U. S. v. Corson, 114 U. S. 619. When a resignation has been accepted the officer ceases to hold the office, and nothing can reinstate him short of a new nomination and confirmation. Mimmack v. U. S., 97 U. S. 437. Who Are Officers of the United States Unless a person in the service of the Government holds his place by virtue of an appointment by the President or of one Sec. 2.-Powers and Duties of President Cl. 2.-Appointment of Officers of the courts of justice or heads of departments authorized by law to make such an appointment, he is not, strictly speaking, an officer of the United States. U. S. v. Mouat, 124 U. S. 307. But see Lamar v. U. S., 241 U. S. 103, holding that a Member of Congress is an officer of the United States within the meaning of sec. 32 of the Penal Code. A surgeon appointed by the Commissioner of Pensions is not an officer within the meaning of this clause. U. S. v. Germaine, 99 U. S. 512. A merchant appraiser selected in accordance with the provisions of a customs act and Treasury regulations adopted thereunder upon the request of an importer for a reappraisal is not an officer of the United States within the meaning of this clause. Auffmordt v. Hedden, 137 U. S. 326. Clerks appointed by a collector of customs are not officers of the United States. U. S. v. Smith, 124 U. S. 532. Antedating Appointments The Executive, by antedating the commission of a public officer without legislative authority can not create a liability on the part of the United States to pay him a salary for the time he was not in the service; but Congress, the legislative branch of the Government, may by law create such liability, and may allow back pay to any officer in consideration of past services or for any other cause which it deems sufficient. Collins's Case, 15 Ct. Cl. 22. Bennett v. U. S., 19 Ct. Cl. 379. Courts Have No Supervising Power The fitness of the appointee must be determined by the appointing power; it is one of those acts over which the courts have no general supervising power. Keim v. U. S., 177 U. S. 293. No Vested Right in an Office An officer appointed for a definite time or during good behavior has not any vested interest or contract right in his office of which Congress can not deprive him. Whatever the form of the statute, the officer under it does not hold by contract, but enjoys a privilege revocable by the sovereignty at will; and one legislature can not deprive its successor of the power of revocation. Crenshaw v. U. S., 134 U. S. 104. Power of Removal In general.-In the absence of constitutional or statutory provision the President can by virtue of his general power of appoint12703°-S. Doc. 157, 68-1-29 Sec. 2.-Powers and Duties of President Cl. 2.-Appointment of Officers ment remove an officer, even though appointed by and with the advice and consent of the Senate. To take away this power of removal in relation to an inferior office created by statute, although that statute provided for an appointment thereto by the President and confirmation by the Senate, would require very clear and expressive language. It should not be held to be taken away by mere inference or implication. Shurtleff v. U. S., 189 U. S. 314. Ex parte Hennen, 13 Pet. 258. A general power to remove officers carries the right to remove at any time or in any manner deemed best, with or without previous notice, and where an officer is removed without notice it will be presumed that the removal was for a cause other than those specified by Congress and which carry the right to notice. Where the power to remove an officer is discretionary the courts will not inquire as to the grounds for a removal. Eckloff v. District of Columbia, 135 U. S. 241. Nicholas v. U. S., 257 U. S. 71. Norris v. U. S., 257 U. S. 77. Wallace v. U. S., 257 U. S. 541. In connection with the President's power summarily to dismiss officers from the military and naval service in time of war, see McElrath v. U. S. (102 U. S. 426), holding that the Civil War ended on August 20, 1866. See also The Protector, 12 Wall. 700. As incident to the power of appointment.-In the absence of specific provision to the contrary, the power of removal from office is incident to the power of appointment. Keim v. U. S., 177 U. S. 293. Effected by appointment of another.-The President, by and with the advice and consent of the Senate, has the power to displace an officer by the appointment of another in his place. Blake v. U. S., 103 U. S. 227. Quackenbush v. U. S., 177 U. S. 25. Removal of inferior officers.-When Congress by law vests the appointment of inferior officers in the heads of departments, it may limit and restrict the power of removal as it deems best for the public interest. The head of a department has no constitutional prerogative of appointment to offices independently of the legislation of Congress, and by such legislation he must be governed, not only in making appointments, but in all that is incident thereto. U. S. v. Perkins, 116 U. S. 483. These cases must be considered as establishing the principle that the President, at his pleasure, can remove an officer other |