on the demand of a foreign country is a question for the judicial department and not for the executive.88

The United States has the same power to make treaties with the Indian tribes that it has with foreign nations.89 A treaty is to be regarded as taking effect from its date, unless a different period is fixed by the contracting parties, or must be adopted in order to fulfill their manifest intention." Treaties, except those relating to the carrying on of hostilities, are suspended or abrogated by war between the contracting parties.o1

§ 182. Appointment of public officers.-"He (i. e., the President) shall nominate, and, by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law. 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."

92

"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.'

2793

The Supreme Court has never given a satisfactory definition of the term "officers of the United States." United States v. Germaine has been accepted generally by Federal judges as the ruling case on this subject. In this case it was held that no person was an officer of the United States unless he had been appointed either by the President or by a head of a department,

ss In re Metzger, 17 Fed. Case, No. 9, 511.

Holden v. Jay, 17 Wallace, 211, 242; United States v. Fortythree Gallons Whiskey, 108 U. S. 491.

In re Metzger, 17 Fed. Case, No. 9, 511.

91 Society, etc., v. New Haven, 8 Wheaton, 464, 494.

2 United States

Constitution,

Art. II., Sec. II., Clause II.

93 United States Constitution, Art. II., Sec. II., Clause III.

499 U. S. 508, followed by United States v. Mouat, 124 U. S. 307, and United States v. Smith, 124 U. S. 532, but see United States v. Hartwell, 6 Wallace, 393 (stated in United States v. Germaine not to be in conflict with that decision).

or by a court of law. Probably no decision ever rendered by the Supreme Court presents poorer reasoning than this one. Its effect is to practically nullify the Constitutional restrictions on the appointment of Federal officers. Congress can provide for the appointment of any (let us say) employees of the Government in any manner it sees fit, and such law will be Constitutional under this decision. Disregarding the Constitutional provisions as to methods of appointment takes the case out of the application of the restriction, because only those appointed in the Constitutional methods are held to be officers within the meaning of the Constitution. It would be hard to give a better illustration of the absurdities resulting from reasoning in a circle.

96

.95

Under the decision in United States v. Germaine, the following have been held not to be officers of the United States: Cashier of the mint appointed by the superintendent of the mint a merchant appraiser appointed for a particular appraisal; custom clerks appointed by a collector of customs;97 a pension surgeon;98 or special agents of the general land office. It is probable that most, if not all, of these positions are not offices, within the meaning of the Constitution. The criticism is directed against the test used to determine their status.

99

A master in chancery for a Federal court is an officer of the United States;100 so is a chaplain of an army hospital,101 and so are letter carriers.102 Inferior officers are not necessarily those holding petty or unimportant places; the term rather includes all those subordinate or inferior to those in whom the power of their appointment is vested.103 The number of officers, therefore, who must be appointed by the President with the advice and consent of the Senate is very limited. Congress has

great power and discretion in providing for the appointment of various offices.104

Congress may prescribe certain conditions which an appointee must comply with before entering upon his office;105 or may require certain qualifications of officers. In the exercise of such power Congress may create a Civil Service Commission and require that appointment to certain positions must be made out of a class of persons ascertained by proper tests to have such qualifications. Congress also may authorize the President to prescribe the qualifications, and to put certain positions under the classified service or to remove positions therefrom.106

The term "heads of departments" means the heads of the various executive departments, who constitute the President's Cabinet. Congress has the fullest power to vest the appointment of such inferior officers as it deems fit, either in these heads of departments,107 or in the courts of law.108

An appointment to an office is not completed until the commission has been delivered,109 and the President may withhold the commission even after the appointment has been confirmed by the Senate.110 The President cannot antedate an appointment.111

As a matter of general convenience the President is allowed greater freedom in filling offices during the recess of the Senate. At such times he can appoint without the ratification of the Senate, but such appointments only continue in effect until the close of the next session of the Senate.1 In order that the President may have this extraordinary power there must be an actual vacancy existing;113 it is not necessary, however, that the

104 Ex parte Siebold, 100 U. S. 371, 397.

105 United States v. LeBaron, 19 Howard, 73.

100 Civil Service Commission, 13 Opinions Atty. Gen. 524; matter of Miller, 5 Mackay (D. C.) 512.

107 United States v. Hartwell, 6 Wallace, 393; Price v. Abbott, 17 Fed. Rep. 507.

112

108 Rice v. Ames, 180 U. S. 378; Russell v. Thomas, 21 Fed. Case, No. 12, 162.

100 Adam's Case, 12 Opinions Atty. Gen. 306.

110 12 Opinions Atty. Gen. 41. 111 17 Opinions Atty. Gen. 97. 112 United States Constitution, Art. II., Sec. II., Clause III.

113 Peck v. United States, 39 Ct. Cl. 125.

vacancy must have first occurred during the recess of the Senate; it is sufficient if it continues to exist after the adjournment of the Senate.114

The power of the President to appoint officers involves, as a necessary incident, the power to remove them.115 "It cannot for a moment be admitted that it was the intention of the Constitution that those offices which are denominated inferior offices should be held during life. And if removable at pleasure, by whom is such removal to be made? In the absence of all Constitutional provisions or statutory regulation it would seem to be a sound and necessary rule to consider the power of removal as incident to the power of appointment."118 Congress can restrict this power of the President by prescribing a definite duration for the term of office.117 The principal contest over this question arose during the administration of Andrew Johnson. The nomination of a new party for an office, and the ratification of such nomination by the Senate, constituted a removal of the former incumbent.118 No office of the United States, except for the few Constitutional protections, whether appointed for life, for a definite or for an indefinite period has any vested interest in his office of which Congress cannot deprive him.119

§ 183. Messages to Congress. Convening and adjourning Congress. He (i. e., the President) 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.'

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The first two Presidents were accustomed to appear personally before Congress and deliver their messages orally. Beginning with Jefferson the Presidents have sent their messages to Congress in writing. It has been customary for the President to end an annual message at the meeting of Congress in December, and special messages as circumstances may require. Such special messages have become much more common recently than ever before in the history of the country.

No President has ever had occasion to exercise his power of adjourning Congress. Many special sessions of Congress have been summoned by the President, as well as special sessions of the Senate alone. No special session of the House of Representatives has ever been called, as this house has no power which it can exercise by itself.

§ 184. Executing the laws. "He (i. e., the President) shall take care that the laws be faithfully executed.

77121

This, perhaps, is the most important of all the duties of a President. It is a duty in the exercise of which there can be no danger of conflict with either of the other departments of the Government. In carrying out this duty the President must see that the laws are executed as they stand, he has no power to change or amend them.122 The laws which he must see executed are those of the United States, not those of the States.123

Under this power the President may take steps for the protection of United States officials,124 or to assist judicial process.125 The power to enforce the laws does not give the President the power to forbid their execution.126

§ 185. Political questions.-The determination of all political questions rests with the executive department, i. e., with the President.127 The following, among others, are political ques