Article 2, Section 2, Clauses 2 and 3
James Monroe to James Madison10 May 1822Writings 6:285--86
Your view of the Constitution, as to the powers of the Executive in the appointment of public Ministers, is in strict accord with my own, and is, as I understand, supported by numerous precedents, under successive administrations. A foreign mission is not an office, in the sense of the Constitution, which authorizes the President to fill vacancies in the recess of the Senate. It is not an office created by law, nor subject to the rules applicable to such offices. It exists only when an appointment is made, and terminates when it ceases, whether by the recall, death, or resignation of the Minister. It exists in the contemplation of the Constitution, with every power, and may be filled with any, or terminated with either, as circumstances may require, according to the judgment of the Executive. If an appointment can be made by the Executive, in the recess of the Senate, to a court at which we have been represented, to fill a vacancy created by the death or resignation of the Minister, I am of opinion that it may be made to a court at which we have never been represented. A different Constitution would embarrass the government much in its movements, and be productive of great mischief. I will search for the precedents which you have mentioned, as it is probable that I may have occasion for them.
The Writings of James Monroe. Edited by Stanislaus Murray Hamilton. 7 vols. New York and London: G. P. Putnam's Sons, 1898--1903.
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