Article 2, Section 2, Clauses 2 and 3

Document 57

John Macpherson Berrien, Commissions Granted during Recess of Senate

Sir: I have the honor to acknowledge the receipt of your communication of yesterday, asking my opinion--

Whether the rejection, by the Senate, of the nomination of Mr. Isaac Hill to the office of Second Comptroller of the Treasury, has vacated the commission granted on the Executive appointment to that office, made during the late recess of the Senate?

Or whether a commission, issued under an executive appointment, continues until the end of the succeeding session of Congress, or until another commission shall be issued on a nomination approved by the Senate?

Mr. Hill was appointed, during the last recess of the Senate, to fill a vacancy occurring during the recess. That appointment was made in pursuance of the third clause of the second section of the constitution, which declares that "the President shall have power to fill 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 commission issued to Mr. Hill was, I presume, in conformity with these provisions. It was then a grant of the office to the end of the next session of Congress succeeding its date; subject intermediately, as all such offices are, to the pleasure of the President.

Under the preceding clause of the same section of the constitution, the President is authorized to nominate, and, by and with the advice and consent of the Senate, to appoint all officers of the United States whose appointments are not otherwise provided for in the constitution, and which shall be established by law--with the provision, which is inapplicable to the present inquiry, that Congress may vest the appointment of such inferior officers as they may think proper in the President alone, in the courts of law, or in the heads of departments.

In the exercise of the power thus conferred upon the President, Mr. Isaac Hill was, during the present session of Congress, nominated by him to the Senate, and the nomination has been rejected by that body. I apprehend that the commission granted to Mr. Hill, in the recess, remains untouched by this nomination, and the rejection of it.

The limitation, which is affixed to it by the constitution, is, the end of the present session of Congress, unless it be sooner determined by the pleasure of the President. To this, the decision of the Supreme Court in the case of the United States vs. Kirkpatrick has superadded another limitation. That court has, in that case, decided that the acceptance of a commission, issued after the confirmation by the Senate of an executive appointment made during the recess, on a nomination to that body of the same individual, is a virtual superseding and surrender of the commission granted on the original appointment; so that, by force of that decision, if Mr. Hill's nomination had been confirmed, and a new commission had issued under an appointment made in conformity to the advice and consent of the Senate, after the acceptance by him of such new commission, that which he originally held would have been virtually superseded, and would not have continued until the end of the present session of Congress; but this would be the result of the concurring acts of the President and the officer: of the former, in the new appointment consequent to the advice and consent of the Senate; of the latter, in the acceptance of the commission issued under such new appointment.

In the case under consideration, whether the commission of Mr. Hill shall continue until the end of the present session of Congress, or be sooner determined, seems to me to depend on the pleasure of the President. He certainly has the power, by and with the advice and consent of the Senate, to determine it by a new appointment, to take effect immediately. But this power is derived from his right of removal. If he abstains from the exercise of that power--if he delays the nomination until the last day of the session, or nominates immediately, specifying that the appointment is to take effect at the end of the present session--in either case, Mr. Hill's commission, undetermined by any act of the executive will, is left to expire, by its own constitutional limitation, at the end of the present session of Congress.

The following proceedings, which have been adverted to among others, seem to conform to this view of the subject:

On the 5th of March, 1799, Mr. Adams, then President, appointed Eugene Brenan an inspector of the revenue; on the 4th of the following December, he nominated that individual to the Senate, for the same office; on the 10th of that month, the nomination was rejected by that body; and, on the 12th of the same month, he made a new nomination in the following terms: "I nominate Julius Nicolls, jr., of South Carolina, to be inspector of survey number three in that State, in place of Eugene Brenan, whose commission will expire at the end of the present session of the Senate;" and on the 13th, the Senate advised and consented to that nomination.

On the 17th January, 1814, Mr. Madison nominated to the Senate, as principal assessor for the twenty-eighth collection district of New York, Homer R. Phelps, who had been appointed to that office during the recess. On the 24th of that month, the nomination was rejected by the Senate; and on the 31st, the President nominated sundry assessors, and, among the rest, "Asahel E. Paine for the twenty-eighth collection district of New York, in room of Homer R. Phelps;" which nomination was confirmed on the 2d of February.

In the first of these cases, Mr. Adams left the officer to enjoy the benefit of the commission granted during the recess, until the end of the then current session of Congress, although his commission was rejected in the early part of that session. In the second, Mr. Madison, conforming to the opinion of the Senate, as expressed in their vote of rejection, determined the executive appointment by appointing a new officer in the room of the person so appointed.

In the first, the President forbore to exercise the power of removal, but left the executive commission, granted during the recess, to expire by its own limitation. The executive commission granted in the second case was determined by the exercise of that power.

Upon the whole, I am of opinion that the commission granted during the recess to Mr. Hill will continue until the end of the present session of Congress, unless it be sooner determined by his resignation, or by the pleasure of the President.

The Founders' Constitution
Volume 4, Article 2, Section 2, Clauses 2 and 3, Document 57
http://press-pubs.uchicago.edu/founders/documents/a2_2_2-3s57.html
The University of Chicago Press

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