President's Power to Fill Vacancies in Recess. sarily be confined to that special hour; but a vacancy is not such an event. It has a beginning, it is true, but it necessarily implies continuance. It is precisely the same thing from the beginning to the end during the period of its duration. If we mark the time of a single action, we say it happened at that time, for it could not be said to happen at any other. But when we speak of such a subject as a vacancy, we must use some other term to mark its beginning, for it may well be said to happen at every point of time that it exists. I incline to think, upon the mere words, that we might construe them precisely as if the phrase were, "If it happens that there is a vacancy in the recess," or "if a vacancy happens to exist in the recess." This, upon the words alone, was the construction put upon this section by Mr. Wirt, and since followed by all his successors in this office who have expressed an opinion on the question. But the rules of construction do not confine us to the words of the section, and do not compel us to adopt a construction according to the mere letter. When we look to other sections of this article, and to the reason and policy of the enactment, all nice criticism must give way to more enlightened construction. It is in the arrangement of executive power that we encounter this question. First of all, it is the President who is made the recipient of this power. The grant is in these words: "The executive power shall be vested in a President of the United States." By another section, it is provided that "he shall take care that the laws be faithfully executed." Now, it is of the very essence of executive power that it should always be capable of exercise. The legislative power and the judicial power come into play at intervals. There are, or may be, periods when there is no legislature in session to pass laws, and no court in session to administer laws, and this without public detriment; but always and everywhere the power to execute the laws is, or ought to be, in full exercise. The President must take care at all times that the laws be faithfully executed. There is no point of time in which the power to President's Power to Fill Vacancies in Recess. enforce or execute the laws may not be required, and there should not be any point of time or interval in which that power is dormant or incapable of acting. It is in view of this necessity that another clause of this article makes careful provision against a vacancy in the office of President, by providing that, upon the death, resig. nation, or removal of the President from office, the powers and duties shall at once devolve on the Vice President, and, by enjoining on Congress to make further provision in case of the death of the Vice President, as to what other officer shall then act as President until another President shall be elected. If any one purpose is manifest in the Constitution, if any one policy is clearly apparent, it is, that in so far as the chief or fountain of executive power is concerned, there shall be no cessation, no interval of time when there may be an incapacity of action. But the President, although the source of executive power, cannot exercise it all himself. It is comparatively but an infinitesimal part of all that is to be done or executed that he can perform. He must act by the agency of others. Accordingly, we find ample provision made for that purpose. The executive power vested in the President by the Constitution has, in many respects, an unlimited range, extending over a time of war as well as a time of peace. He is made commander-in-chief of the army and navy, and of the State militia whilst in the actual service of the United States. All our foreign relations are conducted by officers of his nomination. So, too, all our military and naval officers, and, finally, our civil officers everywhere, whether judicial or strictly executive, are, with the exception of some inferior officers, to be nominated by him. No other branch or department of the Government shares with the President this power to nominate. It is true that the President does not create the officers. That, in general, is part of the legislative power. But the mere legislative creation of an officer, and the provision by law for the duties to be performed by the officer, do not put President's Power to Fill Vacancies in Recess. the officer in place or the law in execution. No matter what may be the necessity, the power to fill the office is not vested in the legislative department. So, too, it is equally true that the President could not execute the duties of the officer himself. He cannot sit as a judge or perform the duties of a marshal. These, like most executive powers, can only be exercised by one agent; that is to say, by the designated officer, and this officer can only be put in place upon the nomination of the President. When, then, we see that the Constitution vests the executive power in the President, and vests in him alone the power to appoint officers to exercise the power, and requires of him alone (not of Congress or the Senate) that he take care that the laws be faithfully executed, we could hardly expect to find his hands tied by a section which would frustrate all these provisions. And yet this is the necessary result of the verbal construction which I have mentioned; for that construction prevents the President from filling any vacancy in any office during the recess of the Senate, unless it be a vacancy which first occurs in the recess. Now, when the Constitution guards with so much care against a vacancy in the office of President, how does it happen that, as to the only agency through which the President can act, there is found a provision exactly contrariwise, that a vacancy in such agency shall continue, and that for a time, longer or shorter, there is no power to fill it, no matter what may be the emergency or how much the public interests may suffer. In other words, to go according to this verbal reading, there may be times. when the executive power is dormant, and must remain dormant-times when the President cannot act himself, and cannot appoint any officer to act, and during which the execution of the laws is so far suspended. Take, as an example, the case of a foreign minister at a distant court, charged with the most important duties pressing for attention at a critical conjuncture, whose office becomes vacant by his death during the session of the President's Power to Fill Vacancies in Recess. Senate, but the vacancy is not known by the President until after the adjournment. Here is an instance of a vacancy which first occurs during the session, and which, upon this construction, cannot be filled in the recess. Take another example: The death of a head of department just on the eve of the adjournment of the Senate, without time for a new nomination, or the rejection of the nominee followed by an adjournment. Is the President to be left, during all the recess, to carry on the Government without the very aid contemplated by the Constitution? I might multiply cases to show the consequences to which the verbal construction leads, but I prefer to rest the question upon higher grounds. 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 must be a 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. On the contrary, the only inquiry is as to the state of things when it is filled. President's Power to Fill Vacancies in Recess. For instance, take the case of a vacancy which does first occur during a recess, but is not filled when the session begins. If the verbal construction is sound, such a vacancy may be filled by the President without the consent of the Senate whilst the Senate is in session; but no one maintains that position. All admit that whenever there is a vacancy existing during the session, whether it first occurred in the recess or after the session began, the power to fill requires the concurrent action of the President and Senate. It seems a necessary corollary to this, that where the vacancy exists in the recess, whether it first occurred in the recess or in the preceding session, the power to fill is in the President alone. If during the recess the power is not in the President, it is nowhere, and there is a time when for a season the President is required to see that the laws are executed, and yet denied the very means provided for their execution. It is argued by those who deny this power to the President, that to allow it would disappoint the clear intent to give the Senate a participation in appointments to office. It is said that, if the President can by his own act fill a vacancy which occurred during the session, he may, if so disposed, wholly omit to nominate an officer during the session, and leave all such vacancies open, and then fill them in the recess. Undoubtedly the President may do all that, and may intentionally abuse his power. The answer to this objection is obvious: In the first place, it may be said that arguments against the existence of a power, founded on its possible abuse, are not satisfactory. If they were, then an objection against any control by the Senate over the President's appointments would be equally cogent, for we may imagine that the Senate might refuse to consent to every appointment made by the President, or to any appropriation to pay the salaries of officers, and thus leave the Executive without power to execute the laws. In the second place, if this argument, founded on the |