Article 2, Section 2, Clauses 2 and 3
United States v. Maurice2 Marshall's C.C. 96 C.C.D.Va. 1823
Marshall, J.: . . . The Constitution, art. 2, sec. 2, declares, that the President "shall nominate, and, by and with the advice and consent of the Senate, shall appoint ambassadors, &c.," "and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law."
I feel no diminution of reverence for the framers of this sacred instrument, when I say that some ambiguity of expression has found its way into this clause. If the relative "which," refers to the word "appointments," that word is referred to in a sense rather different from that in which it had been used. It is used to signify the act of placing a man in office, and referred to as signifying the office itself. Considering this relative as referring to the word "offices," which word, if not expressed, must be understood, it is not perfectly clear whether the words "which" offices "shall be established by law," are to be construed as ordaining, that all offices of the United States shall be established by law, or merely as limiting the previous general words to such offices as shall be established by law. Understood in the first sense, this clause makes a general provision, that the President shall nominate, and by and with the consent of the Senate, appoint to all offices of the United States, with such exceptions only as are made in the Constitution; and that all offices (with the same exceptions) shall be established by law. Understood in the last sense, this general provision comprehends those offices only which might be established by law, leaving it in the power of the executive, or of those who might be entrusted with the execution of the laws, to create in all laws of legislative omission, such offices as might be deemed necessary for their execution, and afterwards to fill those offices.
I do not know whether this question has ever occurred to the legislative or executive of the United States, nor how it may have been decided. In this ignorance of the course which may have been pursued by the government, I shall adopt the first interpretation, because I think it accords best with the general spirit of the Constitution, which seems to have arranged the creation of office among legislative powers, and because, too, this construction is, I think, sustained by the subsequent words of the same clause, and by the third clause of the same section.
The sentence which follows, and forms an exception to the general provision which had been made, authorizes Congress "by law to 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." This sentence, I think, indicates an opinion in the framers of the Constitution, that they had provided for all cases of offices.
The third section empowers the President "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."
This power is not confined to vacancies which may happen in offices created by law. If the convention supposed that the President might create an office, and fill it originally without the consent of the Senate, that consent would not be required for filling up a vacancy in the same office.
The Constitution then is understood to declare, that all offices of the United States, except in cases where the Constitution itself may otherwise provide, shall be established by law.
Has the office of agent of fortifications been established by law?
From the year 1794 to the year 1808, Congress passed several acts, empowering the President to erect fortifications, and appropriating large sums of money to enable him to carry these acts into execution. No system for their execution has ever been organized by law. The legislature seems to have left this subject to the discretion of the executive. The President was, consequently, at liberty to employ any means which the Constitution and laws of the United States placed under his control. He might, it is presumed, employ detachments from the army, or he might execute the work by contract, in all the various forms which contracts can assume. Might he organize a corps, consisting of labourers, managers, paymasters, providers &c., with distinct departments of duty, prescribed and defined by the executive, and with such fixed compensation as might be annexed to the various parts of the service? If this mode of executing the law be consistent with the Constitution, there is nothing in the law itself to restrain the president from adopting it. But the general language of the law must be limited by the Constitution, and must be construed to empower the President to employ those means only which are constitutional. According to the construction given in this opinion to the second section of the second article of that instrument, it directs that all offices of the United States shall be established by law: and I do not think that the mere direction that a thing shall be done, without prescribing the mode of doing it, can be fairly construed into the establishment of an office for the purpose, if the object can be effected without one. It is not necessary, or even a fair inference from such an act, that Congress intended it should be executed through the medium of offices, since there are other ample means by which it may be executed, and since the practice of the government has been for the legislature, wherever this mode of executing an act was intended, to organize a system by law, and either to create the several laws expressly, or to authorize the President in terms, to employ such persons as he might think proper, for the performance of particular services.
If, then, the agent of fortifications be an officer of the United States, in the sense in which that term is used in the Constitution, his office ought to be established by law, and cannot be considered as having been established by the acts empowering the President, generally, to cause fortifications to be constructed.
Is the agent of fortifications an officer of the United States? An office is defined to be "a public charge or employment," and he who performs the duties of the office, is an officer. If employed on the part of the United States, he is an officer of the United States. Although an office is "an employment," it does not follow that every employment is an office. A man may certainly be employed under a contract, express or implied, to do an act, or perform a service, without becoming an officer. But if a duty be a continuing one, which is defined by rules prescribed by the government, and not by contract, which an individual is appointed by government to perform, who enters on the duties appertaining to his station, without any contract defining them, if those duties continue, though the person be changed; it seems very difficult to distinguish such a charge or employment from an office, or the person who performs the duties from an officer.
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The fifth plea is, that James Maurice was never legally appointed, but was, on the 1st day of August, 1818, appointed by the secretary of war, agent of fortifications for Norfolk, Hampton Roads, and the lower part of the Chesapeake Bay, without any provisions of law whatever, authorizing and empowering him to make such appointment, and directly contrary to an act entitled, an act &c., passed the 3d of March, 1809.
To this plea there is a demurrer.
The first question arising on this demurrer, respects the validity of this appointment, made by the secretary of war. It is too clear, I think, for controversy, that appointments to office can be made by heads of department, in those cases only which Congress has authorized by law; and I know of no law which has authorized the secretary of war to make this appointment. There is certainly no statute which directly and expressly confers the power; and the army regulations, which are exhibited as having been adopted by Congress, in the act of the 2d of March, 1821, declares that agents shall be appointed, but not that they shall be appointed by the secretary of war. If this mode of appointment formed a part of the regulations previous to the revision of September, 1816, that is a fact which might or might not be noticed if averred in the pleadings. The Court is not informed of its existence by this demurrer. It must therefore be supposed not to exist, and James Maurice cannot be considered as a regularly appointed agent of fortifications.
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Without entering on the inquiry respecting the limits which may circumscribe the capacity of the United States to contract, I venture to say that it is co-extensive with the duties and powers of government. Every contract which subserves to the performance of a duty, may be rightfully made.
The Constitution, which has vested the whole legislative powers of the Union in Congress, has declared that the President "shall take care that the laws be faithfully executed." The manner in which a law shall be executed does not always form a part of it; a power, not limited or regulated by the words of the acts, has been given by the legislature to the executive, to construct fortifications; and large sums of money have been appropriated to the object. It is not and cannot be denied, that these laws might have been carried into execution by means of contract; yet, there is no act of Congress, expressly authorizing the executive to make any contract in the case. It is useless, and would be tedious, to multiply examples, but many might be given to illustrate the truth of the proposition. It follows, as a necessary consequence, that the duty, and of course the right, to make contracts may flow from an act of Congress, which does not in terms prescribe this duty; the proposition then is true, that there is a power to contract in every case where it is necessary to the execution of a public duty.
The Founders' Constitution
Volume 4, Article 2, Section 2, Clauses 2 and 3, Document 55
The University of Chicago Press
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