Sec. 2.-l'owers and Duties of President Cl. 2.—Appointment of Officers than a judge, and is under no obligation to assign a reason for doing so. This doctrine is a long distance from the opinion of Hamilton, and of Madison, when the latter said "that a wanton removal of an officer by the President without just cause would be grounds for impeaching and removing the Fresident." But that was at the very beginning of the Republic, and the doctrine which we have been discussing is one of the evolutions of the Constitution in the progress of the country; and while the conclusion of the courts vastly increases the influence of the Executive and confers power upon him far beyond the express contemplation of the Constitution, and contrasts strangely with the teachings of the fathers of the Republic, it would be difficult to show that it was not correct. Unless the power to remove an officer other than a Federal judge is lodged somewhere he would necessarily hold for life, and nothing could be more repugnant to the Constitution, or to the spirit of our Republic and our institutions, than this. The misfortune is that the Constitution does not determine who shall remove officers. But the doctrine that the removal of an officer is incident to his appointment is no more violent than the doctrine that an officer once appointed could never be removed, and the question seemed ultimately to come to this, and it was between these two conclusions that the court was to decide. On principle the President can not create a vacancy by removing the occupant of an office for the purpose of filling it, but if he chose to do so it would be difficult to challenge his motive or prove his purpose. (Watson on the Constitution, vol. 2, p. 987.) Clause 3.-RECESS APPOINTMENTS. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. This clause confers upon the President the power to make temporary appointments, or what are called "recess appointments." Such appointments can not be made unless a vacancy actually exists. An office newly created which had not been filled is not a vacancy within this provision. In Peck v. U. S. (39 Ct. Cl., 125) it was said by Justice Peelle: The language of the Constitution, "to fill up all vacancies that may happen during the recess of the Senate," necessarily implies not only the previous existence of an office but that "during the recess of the Senate " a vacancy happened therein which could be filled by the President by commission to expire at the end of the next session of Congress. (P. 136.) Sec. 2.-Powers and Duties of President Cl. 3.-Recess Appointments In In re Farrow (3 Fed. 112) it was held that "vacancies that may happen during the recess of the Senate" are equivalent to "vacancies that may happen to exist during the recess of the Senate." The power conferred by this clause is not confined to vacancies which may happen in offices created by law. An office becomes vacant when the incumbent, having tendered his resignation, receives notice from the proper authorities that the same has been accepted. An act making it unlawful for a person to hold more than one office does not create a vacancy in either until the incumbent elects which to retain. The commission of an officer appointed during a recess, and afterwards nominated and rejected, continues in force until the next session. If the Senate concur, it is a new appointment and a new bond will be required. Whenever an applicant appears with a commission signed by the President appointing him a marshal to fill a vacancy created during a recess, it is the duty of the district judge to take his bond and administer the oath, regardless of any question of the President's power. U. S. v. Maurice, 2 Brock. 96. U. S. v. Kirkpatrick, 9 Wheat. 733. In August, 1898, the Senate being in recess, the President sought to advance Commodore Schley to be a rear admiral, for "eminent and conspicuous conduct in battle." Supposing that a vacancy was thereby caused in the grade of commodore, the President advanced Captain Higginson to the grade of commodore, and other officers to fill supposed vacancies, until the claimant, a lieutenant, was advanced to the grade of lieutenant commander. The officers so advanced were recognized by the departments and paid accordingly. In December, the Senate being in session, the nomination of Commodore Schley was not acted upon, but the promotions of other officers under him were confirmed, including the claimant, whom the President commissioned. Subsequently it was held by the accounting officers that there were no vacancies to which these officers could be appointed, and the overpayments to them were deducted. The ruling of the accounting officers was correct, as the language of the Constitution necessarily implies, not only the previous existence of an office, but that "during the recess of the Senate " a vacancy happened in such office which could be filled by the President by commission to expire at the end of the next session of the Congress. Peck v. U. S., 39 Ct. Cl. 125. Section 3.-MISCELLANEOUS POWERS AND DUTIES. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States. Shall Take Care that the Laws Be Faithfully Executed In General This duty of the President is not limited to the enforcement of acts of Congress or of statutes of the United States according to their expressed terms, but includes the rights, duties, and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of the Government under the Constitution. In re Neagle (135 U. S. 64), in which case it was held that it is within the power of the President to take measures for the protection of a judge of one of the courts of the United States who, while in the discharge of the duties of his office, is threatened with a personal attack which may probably result in his death, and where this protection is to be afforded through civil power the department of justice is the proper one to set in motion the necessary means of protection. No Power to Forbid Their Execution The obligation imposed on the President to see the laws faithfully executed does not imply a power to forbid their execution, and the Postmaster General can not justify a failure to perform a duty imposed upon him by law on the ground that he is alone subject to the direction and control of the President. Kendall v. U. S. 12 Pet. 524. Shall Commission All the Officers When a commission has been signed by the President the appointment is made and the commission is complete when the seal of the United States has been affixed to it by the Secretary of State. Marbury v. Madison, 1 Cranch 162. U. S. v. Le Baron, 19 How. 79. The justices of the Supreme Court may hold circuit courts without having distinct commissions for that purpose. Stuart v. Laird, 1 Cranch 299. Sec. 3.-Miscellaneous Powers and Duties. The discretionary powers of the President are beyond judicial control. Mississippi v. Johnson, 4 Wall, 500. Gaines v. Thompson, 7 Wall. 353. In re Kaine, 14 How. 119. Prize Cases, 2 Black 635. Bartlett v. Kane, 16 How. 272. Board of Liquidation v. McComb, 92 U. S. 531. Craig v. Leitensdorfer, 123 U. S. 189. Chinese Exclusion Case, 130 U. S. 602. Keim v. U. S., 177 U. S. 290. Georgia v. Stanton, 6 Wall. 50. In re Baiz, 135 U. S. 403. On the question of whether or not the President is subject to legal process, Chief Justice Marshall said in Burr's trial (vol. 1, p. 182): That the President of the United States may be subpoenaed and examined as a witness and required to produce any paper in his possession is not controverted. The President, although subject to the general rules which apply to others, may have sufficient motives for declining to produce a particular paper, and those motives may be such as to restrain the court from enforcing its production. The guard furnished to this high officer to protect him from being harassed by vexatious and unnecessary subpoenas is to be looked for in the conduct of the court after these subpoenas have been issued, not in any circumstances which is to precede their being issued * The court can conceive no objection to a subpoena duces tecum to any person whatever, provided the case be such as to justify the process. The executive power is vested in a President; and so far as his powers are derived from the Constitution, he is beyond the reach of any other department, except in the mode prescribed by the Constitution through the impeaching power. Kendall v. U. S., 12 Pet. 610. Mississippi v. Johnson, 4 Wall. 483. Section 4.-IMPEACHMENTS. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. In Article I, section 2, clause 5, of the Constitution, it is of the United States is tried, the Chief Justice shall preside." Shurtleff v. U. S., 189 U. S. 311. A Member of Congress is not an officer of the Government within the meaning of this section. 17 Op. Atty. Gen. 419. |