court and said (p. 317): "In making removals from office it must be assumed that the President acts with reference to his constitutional duty to take care that the laws are faithfully executed, and we think it would be a mistaken view to hold that the mere specification in the statute of some causes for removal thereby excluded the right of the President to remove for any other reason which he, acting with a due sense of his official responsibility, should think sufficient. It is true that under this construction it is possible that officers may be removed for causes unconnected with the proper administration of the office. That is the case with most of the other officers in the Government. The only restraint in cases such as this must consist in the responsibility of the President under his oath of office, to so act as shall be for the general benefit and welfare. The right of removal would exist as inherent in the power of appointment unless taken away in plain and unambiguous language" (p. 318).

But if a statute provides the grounds upon which the officer may be removed he is entitled to notice and hearing, if his removal is based upon one of those grounds. Congress could attach such conditions to the removal of an officer as it would seem proper, and it could provide that the officer could only be removed for the causes stated and for no other and after a hearing, but it would require in a case of inferior officers clear and explicit language in the statute to deprive the President of his right of removal, for that right seems to be inherent in the right to appoint to office.68

It was held in United States v. Perkins, "When Congress vests the appointment of an inferior officer in the head of a department it may limit and restrict the power of removal as it thinks best for the public interests. The constitutional authority in Congress to thus vest the appointment implies authority to limit, restrict and regulate the removal by such laws as Congress may pass relative thereto. The head of the department has no constitutional prerogative of appointment to offices independently of congressional action and he must be gov

68 Shurtleff v. United States, 189 U. S., 312, 318, 317.

erned not only in making appointments, but in all that is incident thereto. 7769

These cases must be considered as establishing the principle that the President, at his pleasure, can remove an officer other 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 President." 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 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.

69 116 U. S., 485.

CHAPTER XXXVIII.

THE EXECUTIVE, CONTINUED.

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 was moved by Mr. Spaight while the Convention was considering the subject of the Executive, and was adopted by the Convention without change and reported without change by the Committee on Style.1 The provision was doubtless taken from the Constitution of North Carolina, which contained a similar clause.

This clause confers upon the President the power to make temporary appointments, or what are called "recess appointments.' Such appointments cannot be made unless a vacancy actually exists. An office newly created which had not been filled is not a vacancy within this provision.2

In the above case, Peele, J. (p. 136), said: "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." On principle the President cannot 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.

When must vacancy occur?-In an opinion rendered by Attorney General Taney, he said: "It has been contended that, in order to enable the President to make the appointment, the vacancy must take place during the recess; 1 Journal, 681.

2 Peck v. United States, 39 Court of Claims, 125.

in other words, that the office must be filled at the time of the adjournment of the Senate, and become vacant afterwards. I cannot think that this is the true interpretation of the article in question. The Constitution was formed for practical purposes, and a construction that defeats the very object of the grant of power cannot be the true one. It was the intention of the Constitution that the offices created by law, and necessary to carry on the operation of the Government, should always be full, or at all events the vacancy should not be a protracted one." 173

This provision was given consideration by Attorney General Stanbery. In his opinion he said: "As some claim that the vacancy does not happen within the meaning of the Constitution, before the recess, I propose to consider the general question, whether the President can fill up a vacancy in the recess which existed in the prior session. I am not aware of any decision of the Supreme Court that has any direct bearing upon this question. It has, however, frequently been passed upon by my predecessors. Mr. Wirt in 1823, Mr. Taney in 1833 and Mr. Legare in 1841 concurred in opinion that vacancies first occurring during the session of the Senate may be filled by the President in the recess." Mr. Mason, in a short opinion given in 1845, held that vacancies known to exist during the session could not be filled in the recess; but in a more elaborate opinion written in 1846, he expresses general concurrence with his three predecessors.

In his opinion Attorney General Stanbery (p. 38) said: "The true theory of the Constitution in this particular seems to me to be this: that as to the executive power, it is always to be in action or in capacity for action; and that, to meet this necessity, there is a provision against a vacancy in the chief executive office, and against vacancies in all the subordinate offices, and that at all times. there is a power to fill such vacancies. It is the President whose duty it is to see that the vacancy is filled. If the Senate is in session they must assent to his nomination. If the Senate is not in session, the President fills the vacancy alone. All that is to be looked to is, that there is a vacancy, no matter when it first occurred, and there 3 2nd Op. A. G., 526, 527.

must be power to fill it. If it should have been filled whilst the Senate was in session, but was not then filled, that omission is no excuse for longer delay, for the public exigency which requires the officer may be as cogent, and more cogent, during the recess than during the session. I repeat it, wherever there is a vacancy there is a power to fill it. This power is in the President, with the assent of the Senate whilst that body is in session, and in the President alone when the Senate is not in session. There is no reason upon which the power to fill a vacancy can be limited by the state of things when it first occurred."

"I am accordingly of opinion (page 42) that the President has full and independent power to fill vacancies in the recess of the Senate, without any limitation as to the time when they first occurred."

This doctrine was affirmed in an opinion by Attorney General Devens in which all the preceding cases were examined and commented upon."

"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.""

Recess of the Senate.

There is some ambiguity in this language arising from the use of the term "recess, "though if a single word was to be employed it is doubtful if any could be used which would be more explicit. Taking the word in connection with the entire clause in which it is found and also in connection with the power of appointment conferred upon the President, it is evident that the Convention meant that the President should make appointments during the time the Senate should not be in regular session. Not to confer this power upon the Presidentin other words, to have provided that vacancies could be filled only when the Senate was in session-might very seriously have crippled the administration of the government. It cannot be that any such intention was in the

4 12 Op. A. G., 32-42.

5 16 Op. A. G., 522.

6 In re Farron, 3 Fed. Rep., 112.