pointments; that his authority to appoint was limited in express terms, but his authority to remove was not limited at all, and Congress had no power to interpolate a limitation upon the general executive functions, which the Constitution does not expressly, or by any necessary implication, contain. To these considerations it was added, that without the power to remove, the President would be shorn of half his independent authority; that he would be under a responsibility for the proper execution of the laws, without any means of enforcing his will upon officers who might, perhaps, be incompetent or untrustworthy. In short, that it would often happen that an officer should be removed for a cause not sufficient for an impeachment, and that the President is the proper person to judge of the nature and sufficiency of such causes. Mr. Madison was the principal champion of the President's absolute power, and his arguments and influence doubtless carried with him a majority of the House. In answering the objection that such a power in the President might easily become dangerous, that he might remove officers from mere partisan and personal ends, he said: "The danger, then, consists merely in this,the President can displace from office a man whose merits require that he should be continued in it. What will be the motives which the President can feel for such an abuse of his power, and the restraints that operate to prevent it? In the first place he will be impeachable by this house, before the Senate, for such an act of maladministration; for I contend that the wanton removal of meritorious officers would subject him to impeachment and removal from his own high trust. The motion to strike out the clause was rejected by a vote of thirty-four to twenty.1

§ 650. The grounds thus assumed by a majority of the House, at the very commencement of our present Union, have been assented to by every administration since, and have furnished a rule for the guidance of every President, of whatever school of political opinion, from Washington to the present Executive. The only difference between these Chief Magistrates has been in respect to the causes which they have

1 Elliott's Debates, Vol. 1, pp. 350-404.

deemed sufficient to warrant a removal; whether they have required causes personal with the officer, affecting his integrity or his capacity, or whether they have relied on causes that were only partisan and political. It must be admitted that, in the progress of time, the kinds of removal which the opponents of the President's power described as so dangerous, and which Mr. Madison declared would be sufficient ground for impeachment, have become by far the most common; and that the power is now claimed on the one hand, and denied on the other, chiefly for the opportunity which it gives to punish political opponents and reward political friends.

651. Let us briefly examine these two theories of construction, and the arguments which support them. One gives the function to the President, the other to the President and Senate; both deny that Congress may pass any law restraining the capacity. Neither claims to find the authority in any express grants of the Constitution. Each infers the authority from other grants in that instrument; and its advocates attempt to strengthen their position by describing the superior advantages and greater conveniences which would result, or do result, from their interpretation, and the corresponding dangers and evils which would result, or do result, from the other interpretation. While the reasoning is of this character, it can hardly be said that the arguments on either side are absolutely convincing. Still, as between these two theories, I am of opinion that the one which has received the sanction of long practice, is supported by considerations of the greater weight.

§ 652. It would seem to be plain that, as the President is charged with the duty to "take care that the laws be faithfully executed," he should be able to remove any officer for a good cause affecting that officer personally, for incapacity to perform his duties, neglect in the performance, breach of trust, or for any other maladministration. But where so much is conceded, there does not seem to be any limit to the power of the President to remove. The Constitution is silent; it makes no distinction between removing for good cause, and for bad cause, and for no cause.

The President's authority to remove

at all is inferred from the nature of removal in itself, not from the nature of the cause or occasion upon which the power may be exercised. To be sure the nature of the cause of removal has often been appealed to as illustrative of the expediency, or even necessity, that this function should be confided to the President; but a removal, because the President so wished, is just as much an executive act, as a removal because the officer was thoroughly incompetent or utterly dishonest. This argument is strengthened by another consideration. There are some officers, and those generally of the very highest importance, whose relations to the President are such, that his power over them should plainly be absolute. They are his personal agents, perhaps his advisers, but certainly his immediate organs, by which he accomplishes most of his official acts in respect to matters in which he has the largest discretion. These are the heads of departments, and though, perhaps, to a less extent, foreign ministers. The President should be able to remove a head of either department without any regard to that person's capacity or integrity, and for no other cause than his own wish. So true is this, that the Senate has long adopted a practice to confirm the appointments made by a President to his cabinet, although the persons appointed may have been distasteful to the Senators. But there is certainly no constitutional power to remove this class of officers at pleasure, which does not equally apply to all other classes. To sum up: The interpretation of the Constitution which gives the authority in question to the President and Senate is finally based upon the notion that appointing and removing are correlative in their nature, and the person or persons who appoint must necessarily be charged with the power to remove. The interpretation which gives the authority to the President is finally based upon the notion that removal is an executive act, and that the unlimited power in him is necessary in order that he may "take care that the laws be faithfully executed.” The latter considerations seem to be the more weighty of the

two.

653. But there is a third alternative. It may be assumed that the Constitution has left the whole subject in doubt; that

an interpretation which should give the absolute power of removal either to the President, or to the President and Senate, would be overstrained; that neither of the theories already considered can be supported by any just construction of the organic law. Then the whole matter is left under the control of Congress. That body may create offices, and must create all to which the power of appointment applies. As an incident to the power of creation, the authority to fix the terms of office plainly exists, except in those very few instances where the Constitution has spoken. In thus prescribing the duration. of an official term, Congress may either place a definite limit of time, or may make that limit uncertain, conditional, depending upon the action of some other person or persons authorized to act. Thus the legislature may regulate the duration of office, and therein the power of removal, and may confer that power upon the President alone, or upon the President and the Senate conjointly. In this manner some officers may be placed by law under the complete control of the Chief Magistrate; others may be left to the disposition of the dual appointing power. It may be that this theory will be accepted, and become the practical guide in the administration of public affairs.

§ 654. But another question has arisen, which is sometimes regarded as wholly independent of the one just discussed. It involves the extent of the President's power under the following clause: "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." The question is whether the President may, during the recess, create a vacancy by the removal of an incumbent, and then proceed to fill that vacancy by appointing a successor whose commission is to last until the close of the next session of the Senate. In other words, the question is not so much that of removal, as that of appointment. So far as the practice of various administrations has gone, it has recognized the existence of the power. It is evident also, that once admit this construction of the Constitution to be correct the check upon the President held by the Senate will be in a

great measure destroyed. If he finds that the Senate are opposed to him in the matter of appointments, and that it is morally certain his nominations will be rejected, he may wait until the adjournment of that body, and then make removals and fill the consequent vacancies. The persons commissioned would be certain to hold their offices to the close of the succeeding session.

§ 655. Still, if we grant the general power of the President to make removals, I see no escape from the construction which has heretofore been adopted in practice. The power to fill vacancies during the recess, by appointments which shall last to the close of the next session, extends, by the express terms of the Constitution, only to those which happen during a recess. All which happen during a session, must be filled during the session, or they cannot be filled at all, and the nomination must be confirmed by the Senate. If language can express any thought, it is clear that a vacancy must not have commenced during a session and have extended into the recess, but must have commenced during the recess. There is, therefore, a plain check upon removals by the President during a session, for he cannot fill vacancies thus created, without consulting the Senate.

$656. The objections to the power of the President to fill such vacancies as he has himself caused during a recess by removal of a former incumbent, are based upon two positions ; first, that he has no power to remove at all; secondly, that granting his power to remove, he can only fill such vacancies as "happen" during a recess. It has been urged that the word " happen" necessarily implies something accidental, some casualty; that it is not synonymous with the word "occur"; that the President has not power, therefore, to fill all vacancies which may occur during a recess, but only such as are really accidental, or fortuitous, such as those caused by death, or resignation, and the like, which are causes entirely beyond the control of the President. It is urged that a vacancy cannot, with any propriety, be said to "happen," which was created by the deliberate act of the President. This argument is strengthened by the consideration already alluded