Article 2, Section 2, Clauses 2 and 3
Joseph Story, Commentaries on the Constitution 3:§§ 1519--26, 1528--33, 1535--40, 1548, 1550--531833
§ 1519. Under the confederation, an exclusive power was given to congress of "sending and receiving ambassadors." The term "ambassador," strictly construed, (as would seem to be required by the second article of that instrument,) comprehends the highest grade only of public ministers; and excludes those grades, which the United States would be most likely to prefer, whenever foreign embassies may be necessary. But under no latitude of construction could the term, "ambassadors," comprehend consuls. Yet it was found necessary by congress to employ the inferior grades of ministers, and to send and receive consuls. It is true, that the mutual appointment of consuls might have been provided for by treaty; and where no treaty existed, congress might perhaps have had the authority under the ninth article of the confederation, which conferred a general authority to appoint officers managing the general affairs of the United States. But the admission of foreign consuls into the United States, when not stipulated for by treaty, was no where provided for. The whole subject was full of embarrassment and constitutional doubts; and the provision in the constitution, extending the appointment to other public ministers and consuls, as well as to ambassadors, is a decided improvement upon the confederation.
§ 1520. In the first draft of the constitution, the power was given to the president to appoint officers in all cases, not otherwise provided for by the constitution; and the advice and consent of the senate was not required. But in the same draft, the power to appoint ambassadors and judges of the Supreme Court was given to the senate. The advice and consent of the senate, and the appointment by the president of ambassadors, and ministers, consuls, and judges of the Supreme Court, was afterwards reported by a committee, as an amendment, and was unanimously adopted.
§ 1521. The mode of appointment to office, pointed out by the constitution, seems entitled to peculiar commendation. There are several ways, in which in ordinary cases the power may be vested. It may be confided to congress; or to one branch of the legislature; or to the executive alone; or to the executive in concurrence with any selected branch. The exercise of it by the people at large will readily be admitted by all considerate statesmen, to be impracticable, and therefore need not be examined. The suggestions, already made upon the treaty-making power, and the inconveniences of vesting it in congress, apply with great force to that of vesting the power of appointment to office in the same body. It would enable candidates for office to introduce all sorts of cabals, intrigues, and coalitions into congress; and not only distract their attention from their proper legislative duties; but probably in a very high degree influence all legislative measures. A new source of division and corruption would thus be infused into the public councils, stimulated by private interests, and pressed by personal solicitations. What would be to be done, in case the senate and house should disagree in an appointment? Are they to vote in convention, or as distinct bodies? There would be practical difficulties attending both courses; and experience has not justified the belief, that either would conduce either to good appointments, or to due responsibility.
§ 1522. The same reasoning would apply to vesting the power exclusively in either branch of the legislature. It would make the patronage of the government subservient to private interests, and bring into suspicion the motives and conduct of members of the appointing body. There would be great danger, that the elections at the polls might be materially influenced by this power, to confer, or to withhold favours of this sort.
§ 1523. Those, who are accustomed to profound reflection upon the human character and human experience, will readily adopt the opinion, that one man of discernment is better fitted to analyze and estimate the peculiar qualities, adapted to particular offices, than any body of men of equal, or even of superior discernment. His sole and undivided responsibility will naturally beget a livelier sense of duty, and a more exact regard to reputation. He will inquire with more earnestness, and decide with more impartiality. He will have fewer personal attachments to gratify, than a body of men; and will be less liable to be misled by his private friendships and affections; or, at all events, his conduct will be more open to scrutiny, and less liable to be misunderstood. If he ventures upon a system of favoritism, he will not escape censure, and can scarcely avoid public detection and disgrace. But in a public body appointments will be materially influenced by party attachments and dislikes; by private animosities, and antipathies, and partialities; and will be generally founded in compromises, having little to do with the merit of candidates, and much to do with the selfish interests of individuals and cabals. They will be too much governed by local, or sectional, or party arrangements. A president, chosen from [Volume 4, Page 118] the nation at large, may well be presumed to possess high intelligence, integrity, and sense of character. He will be compelled to consult public opinion in the most important appointments; and must be interested to vindicate the propriety of his appointments by selections from those, whose qualifications are unquestioned, and unquestionable. If he should act otherwise, and surrender the public patronage into the hands of profligate men, or low adventurers, it will be impossible for him long to retain public favour. Nothing, no, not even the whole influence of party, could long screen him from the just indignation of the people. Though slow, the ultimate award of popular opinion would stamp upon his conduct its merited infamy. No president, however weak, or credulous, (if such a person could ever under any conjuncture of circumstances obtain the office,) would fail to perceive, or to act upon admonitions of this sort. At all events, he would be less likely to disregard them, than a large body of men, who would share the responsibility, and encourage each other in the division of the patronage of the government.
§ 1524. But, though these general considerations might easily reconcile us to the choice of vesting the power of appointment exclusively in the president, in preference to the senate, or house of representatives alone; the patronage of the government, and the appointments to office are too important to the public welfare, not to induce great hesitation in vesting them exclusively in the president. The power may be abused; and, assuredly, it will be abused, except in the hands of an executive of great firmness, independence, integrity, and public spirit. It should never be forgotten, that in a republican government offices are established, and are to be filled, not to gratify private interests and private attachments; not as a means of corrupt influence, or individual profit; not for cringing favourites, or court sycophants; but for purposes of the highest public good; to give dignity, strength, purity, and energy to the administration of the laws. It would not, therefore, be a wise course to omit any precaution, which, at the same time, that it should give to the president a power over the appointments of those, who are in conjunction with himself to execute the laws, should also interpose a salutary check upon its abuse, acting by way of preventive, as well as of remedy.
§ 1525. Happily, this difficult task has been achieved by the constitution. The president is to nominate, and thereby has the sole power to select for office; but his nomination cannot confer office, unless approved by a majority of the senate. His responsibility and theirs is thus complete, and distinct. He can never be compelled to yield to their appointment of a man unfit for office; and, on the other hand, they may withhold their advice and consent from any candidate, who in their judgment does not possess due qualifications for office. Thus, no serious abuse of the power can take place without the co-operation of two co-ordinate branches, of the government, acting in distinct spheres; and, if there should be any improper concession on either side, it is obvious, that from the structure and changes, incident to each department, the evil cannot long endure, and will be remedied, as it should be, by the elective franchise. The consciousness of this check will make the president more circumspect, and deliberate in his nominations for office. He will feel, that, in case of a disagreement of opinion with the senate, his principal vindication must depend upon the unexceptionable character of his nomination. And in case of a rejection, the most, that can be said, is, that he had not his first choice. He will still have a wide range of selection; and his responsibility to present another candidate, entirely qualified for the office, will be complete and unquestionable.
§ 1526. Nor is it to be expected, that the senate will ordinarily fail of ratifying the appointment of a suitable person for the office. Independent of the desire, which such a body may naturally be presumed to feel, of having offices suitably filled, (when they cannot make the appointment themselves,) there will be a responsibility to public opinion for a rejection, which will overcome all common private wishes. Cases, indeed, may be imagined, in which the senate from party motives, from a spirit of opposition, and even from motives of a more private nature, may reject a nomination absolutely unexceptionable. But such occurrences will be rare. The more common error, (if there shall be any) will be too great a facility to yield to the executive wishes, as a means of personal, or popular favour. A president will rarely want means, if he shall choose to use them, to induce some members of such a body to aid his nominations; since a correspondent influence may be fairly presumed to exist, to gratify such persons in other recommendations for office, and thus to make them indirectly the dispensers of local patronage. It will be, principally, with regard to high officers, such as ambassadors, judges, heads of departments, and other appointments of great public importance, that the senate will interpose to prevent an unsuitable choice. Their own dignity, and sense of character, their duty to their country, and their very title to office will be materially dependent upon a firm discharge of their duty on such occasions.
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§ 1528. It was objected by some persons, at the time of the adoption of the constitution, that this union of the executive with the senate in appointments would give the president an undue influence over the senate. This argument is manifestly untenable, since it supposes, that an undue influence over the senate is to be acquired by the power of the latter to restrain him. Even, if the argument were well founded, the influence of the president over the senate would be still more increased, by giving him the exclusive power of appointment; for then he would be wholly beyond restraint. The opposite ground was assumed by other persons, who thought the influence of the senate over the president would by this means become dangerous, if not irresistible. There is more plausibility in this suggestion; but it proceeds upon unsatisfactory reasoning. It is certain, that the senate cannot, by their refusal to confirm the nominations of the president, prevent him from the proper discharge of his duty. The most, that can be suggested, is, that they may induce him to yield to their favourites, instead of his own, by resisting his nominations. But if this should happen in a few rare instances, it is obvious, that his means of influence would ordinarily form a counter check. The power, which can originate the disposal [Volume 4, Page 119] of honours and emoluments, is more likely to attract, than to be attracted by the power, which can merely obstruct their course. But in truth, in every system of government there are possible dangers, and real difficulties; and to provide for the suppression of all influence of one department, in regard to another, would be as visionary, as to provide, that human passions and feelings should never influence public measures. The most, that can be done, is to provide checks, and public responsibility. The plan of the constitution seems as nearly perfect for this purpose, as any one can be; and indeed it has been less censured, than any other important delegation of power in that instrument.
§ 1529. The other part of the clause, while it leaves to the president the appointment to all offices, not otherwise provided for, enables congress to vest the appointment of such inferior officers, as they may think proper, in the president, in the courts of law, or in the heads of departments. The propriety of this discretionary power in congress, to some extent, cannot well be questioned. If any discretion should be allowed, its limits could hardly admit of being exactly defined; and it might fairly be left to congress to act according to the lights of experience. It is difficult to foresee, or to provide for all the combinations of circumstances, which might vary the right to appoint in such cases. In one age the appointment might be most proper in the president; and in another age, in a department.
§ 1530. In the practical course of the government, there does not seem to have been any exact line drawn, who are, and who are not, to be deemed inferior officers in the sense of the constitution, whose appointment does not necessarily require the concurrence of the senate. In many cases of appointments, congress have required the concurrence of the senate, where, perhaps, it might not be easy to say, that it was required by the constitution. The power of congress has been exerted to a great extent, under this clause, in favour of the executive department. The president is by law invested, either solely, or with the senate, with the appointment of all military and naval officers, and of the most important civil officers, and especially of those connected with the administration of justice, the collection of the revenue, and the supplies and expenditures of the nation. The courts of the Union possess the narrow prerogative of appointing their own clerk, and reporter, without any farther patronage. The heads of department are, in like manner, generally entitled to the appointment of the clerks in their respective offices. But the great anomaly in the system is the enormous patronage of the postmaster general, who is invested with the sole and exclusive authority to appoint, and remove all deputy post-masters; and whose power and influence have thus, by slow degrees, accumulated, until it is, perhaps, not too much to say, that it rivals, if it does not exceed, in value and extent, that of the president himself. How long a power so vast, and so accumulating, shall remain without any check on the part of any other branch of the government, is a question for statesmen, and not for jurists. But it cannot be disguised, that it will be idle to impose constitutional restraints upon high executive appointments, if this power, which pervades every village of the republic, and exerts an irresistible, though silent, influence in the direct shape of office, or in the no less inviting form of lucrative contracts, is suffered to remain without scrutiny or rebuke. It furnishes no argument against the interposition of a check, which shall require the advice and consent of the senate to appointments, that the power has not hitherto been abused. In its own nature, the post-office establishment is susceptible of abuse to such an alarming degree; the whole correspondence of the country is so completely submitted to the fidelity and integrity of the agents, who conduct it; and the means of making it subservient to mere state policy are so abundant, that the only surprise is, that it has not already awakened the public jealousy, and been placed under more effectual control. It may be said, without the slightest disparagement of any officer, who has presided over it, that if ever the people are to be corrupted, or their liberties are to be prostrated, this establishment will furnish the most facile means, and be the earliest employed to accomplish such a purpose.
§ 1531. It is observable, that the constitution makes no mention of any power of removal by the executive of any officers whatsoever. As, however, the tenure of office of no officers, except those in the judicial department, is, by the constitution, provided to be during good behaviour, it follows by irresistible inference, that all others must hold their offices during pleasure, unless congress shall have given some other duration to their office. As far as congress constitutionally possess the power to regulate, and delegate the appointment of "inferior officers," so far they may prescribe the term of office, the manner in which, and the persons by whom, the removal, as well as the appointment to office, shall be made. But two questions naturally occur upon this subject. The first is, to whom, in the absence of all such legislation, does the power of removal belong; to the appointing power, or to the executive; to the president and senate, who have concurred in the appointment, or to the president alone? The next is, if the power of removal belongs to the executive, in regard to any appointments confided by the constitution to him; whether congress can give any duration of office in such cases, not subject to the exercise of this power of removal? Hitherto the latter has remained a merely speculative question, as all our legislation, giving a limited duration to office, recognises the executive power of removal, as in full force.
§ 1532. The other is a vastly important practical question; and, in an early stage of the government, underwent a most elaborate discussion. The language of the constitution is, that the president "shall nominate, and, by and with the advice and consent of the senate, appoint," &c. The power to nominate does not naturally, or necessarily include the power to remove; and if the power to appoint does include it, then the latter belongs conjointly to the executive and the senate. In short, under such circumstances, the removal takes place in virtue of the new appointment, by mere operation of law. It results, and is not separable, from the appointment itself.
§ 1533. This was the doctrine maintained with great earnestness by the Federalist; and it had a most material tendency [Volume 4, Page 120] to quiet the just alarms of the overwhelming influence, and arbitrary exercise of this prerogative of the executive, which might prove fatal to the personal independence, and freedom of opinion of public officers, as well as to the public liberties of the country. Indeed, it is utterly impossible not to feel, that, if this unlimited power of removal does exist, it may be made, in the hands of a bold and designing man, of high ambition, and feeble principles, an instrument of the worst oppression, and most vindictive vengeance. Even in monarchies, while the councils of state are subject to perpetual fluctuations and changes, the ordinary officers of the government are permitted to remain in the silent possession of their offices, undisturbed by the policy, or the passions of the favourites of the court. But in a republic, where freedom of opinion and action are guaranteed by the very first principles of the government, if a successful party may first elevate their candidate to office, and then make him the instrument of their resentments, or their mercenary bargains; if men may be made spies upon the actions of their neighbours, to displace them from office; or if fawning sycophants upon the popular leader of the day may gain his patronage, to the exclusion of worthier and abler men, it is most manifest, that elections will be corrupted at their very source; and those, who seek office, will have every motive to delude, and deceive the people. It was not, therefore, without reason, that, in the animated discussions already alluded to, it was urged, that the power of removal was incident to the power of appointment. That it would be a most unjustifiable construction of the constitution, and of its implied powers, to hold otherwise. That such a prerogative in the executive was in its own nature monarchical and arbitrary; and eminently dangerous to the best interests, as well as the liberties, of the country. It would convert all the officers of the country into the mere tools and creatures of the president. A dependence, so servile on one individual, would deter men of high and honourable minds from engaging in the public service. And if, contrary to expectation, such men should be brought into office, they would be reduced to the necessity of sacrificing every principle of independence to the will of the chief magistrate, or of exposing themselves to the disgrace of being removed from office, and that too at a time, when it might no longer be in their power to engage in other pursuits.
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§ 1535. On the other hand, those, who after the adoption of the constitution held the doctrine, (for before that period it never appears to have been avowed by any of its friends, although it was urged by its opponents, as a reason for rejecting it,) that the power of removal belonged to the president, argued, that it resulted from the nature of the power, and the convenience, and even necessity of its exercise. It was clearly in its nature a part of the executive power, and was indispensable for a due execution of the laws, and a regular administration of the public affairs. What would become of the public interests, if during the recess of the senate the president could not remove an unfaithful public officer? If he could not displace a corrupt ambassador, or head of department, or other officer engaged in the finances, or expenditures of the government? If the executive, to prevent a non-execution of the laws, or a non-performance of his own proper functions, had a right to suspend an unworthy officer from office, this power was in no respect distinguishable from a power of removal. In fact, it is an exercise, though in a more moderated form, of the same power. Besides; it was argued, that the danger, that a president would remove good men from office was wholly imaginary. It was not by the splendour attached to the character of a particular president like Washington, that such an opinion was to be maintained. It was founded on the structure of the office. The man, in whose favour a majority of the people of the United States would unite, to elect him to such an office, had every probability at least in favour of his principles. He must be presumed to possess integrity, independence, and high talents. It would be impossible, that he should abuse the patronage of the government, or his power of removal, to the base purposes of gratifying a party, or of ministering to his own resentments, or of displacing up-right and excellent officers for a mere difference of opinion. The public odium, which would inevitably attach to such conduct, would be a perfect security against it. And, in truth, removals made from such motives, or with a view to bestow the offices upon dependents, or favourites, would be an impeachable offence. One of the most distinguished framers of the constitution on that occasion, after having expressed his opinion decidedly in favour of the existence of the power of removal in the executive, added: "In the first place he will be impeachable by this house before the senate for such an act of mal-administration; for I contend, that the wanton removal of meritorious officers would subject him to impeachment, and removal from his high trust."
§ 1536. After a most animated discussion, the vote finally taken in the house of representatives was affirmative of the power of removal in the president, without any co-operation of the senate, by the vote of thirty-four members against twenty. In the senate the clause in the bill, affirming the power, was carried by the casting vote of the vice-president.
§ 1537. That the final decision of this question so made was greatly influenced by the exalted character of the president, then in office, was asserted at the time, and has always been believed. Yet the doctrine was opposed, as well as supported, by the highest talents and patriotism of the country. The public, however, acquiesced in this decision; and it constitutes, perhaps, the most extraordinary case in the history of the government of a power, conferred by implication on the executive by the assent of a bare majority of congress, which has not been questioned on many other occasions. Even the most jealous advocates of state rights seem to have slumbered over this vast reach of authority; and have left it untouched, as the neutral ground of controversy, in which they desired to reap no harvest, and from which they retired without leaving any protestations of title or contest. Nor is this general acquiescence and silence without a satisfactory explanation. Until a very recent period, the power had been exercised in few cases, and generally in such, as led to their own vindication. [Volume 4, Page 121] During the administration of President Washington few removals were made, and none without cause; few were made in that of the first President Adams. In that of President Jefferson the circle was greatly enlarged; but yet it was kept within narrow bounds, and with an express disclaimer of the right to remove for differences of opinion, or otherwise, than for some clear public good. In the administrations of the subsequent presidents, Madison, Monroe, and J. Q. Adams, a general moderation and forebearance were exercised with the approbation of the country, and without disturbing the harmony of the system. Since the induction into office of President Jackson, an opposite course has been pursued; and a system of removals and new appointments to office has been pursued so extensively, that it has reached a very large proportion of all the offices of honour and profit in the civil departments of the country. This is matter of fact; and beyond the statement of the fact it is not the intention of the Commentator to proceed. This extraordinary change of system has awakened general attention, and brought back the whole controversy, with regard to the executive power of removal, to a severe scrutiny. Many of the most eminent statesmen in the country have expressed a deliberate opinion, that it is utterly indefensible, and that the only sound interpretation of the constitution is that avowed upon its adoption; that is to say, that the power of removal belongs to the appointing power.
§ 1538. Whether the predictions of the original advocates of the executive power, or those of the opposers of it, are likely, in the future progress of the government, to be realized, must be left to the sober judgment of the community, and to the impartial award of time. If there has been any aberration from the true constitutional exposition of the power of removal, (which the reader must decide for himself,) it will be difficult, and perhaps impracticable, after forty years' experience, to recall the practice to the correct theory. But at all events, it will be a consolation to those, who love the Union, and honour a devotion to the patriotic discharge of duty, that in regard to "inferior officers," (which appellation probably includes ninety-nine out of a hundred of the lucrative offices in the government,) the remedy for any permanent abuse is still within the power of congress, by the simple expedient of requiring the consent of the senate to removals in such cases.
§ 1539. Another point of great practical importance is, when the appointment of any officer is to be deemed complete. It will be seen in a succeeding clause, that the president is to "commission all the officers of the United States." In regard to officers, who are removable at the will of the executive, the point is unimportant, since they may be displaced, and their commission arrested at any moment. But if the officer is not so removable, the time, when the appointment is complete, becomes of very deep interest.
§ 1540. This subject was very elaborately discussed in the celebrated case of Marbury v. Madison.
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§ 1548. Another question, growing out of appointments, is, at what time the appointee is to be deemed in office, whether from the time of his acceptance of the office, or his complying with the preliminary requisitions, (such, as taking the oath of office, giving bond for the faithful discharge of his duties, &c.) or his actual entry upon the duties of his office. This question may become of great practical importance in cases of removals from office, and also in cases, where by law officers are appointed for a limited term. It frequently happens, that no formal removal from office is made by the president, except by nominating another person to the senate, in place of the person removed, and without any notice to him. In such a case, is the actual incumbent in office de facto removed immediately upon the nomination of a new officer? If so, then all his subsequent acts in the office are void, though he may have no notice of the nomination, and may, from the delay to give such notice, go on for a month to perform its functions. Is the removal to be deemed complete only, when the nomination has been confirmed? Or, when notice is actually given to the incumbent? Or, when the appointee has accepted the office? Hitherto this point does not seem to have received any judicial decision, and therefore must be treated as open to controversy. If the decision should be, that in such cases the nomination without notice creates a removal de facto, as well as de jure, it is obvious, that the public, as well as private individuals, may become sufferers by unintentional and innocent violations of law. A collector, for instance, may receive duties, may grant clearances to vessels, and may perform other functions of the office for months after such a nomination, without the slightest suspicion of any want of legal authority. Upon one occasion it was said by the Supreme Court, that "when a person appointed to any office (under the United States) refuses to accept that office, the successor is nominated in the place of the person, who has declined to accept, and not in the place of the person, who had been previously in office, and had created the original vacancy." From this remark, it would seem to be the opinion of the court, that the office is completely filled in every case of vacancy, as soon as the appointment is complete; independently of the acceptance of the appointee. If so, it would seem to follow, that the removal must, at all events, be complete, as soon as a new appointment is made.
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§ 1550. This clause [2.2.3] was not in the first draft of the constitution; but was afterwards inserted by an amendment, apparently without objection. One of the most extraordinary instances of a perverse intention to misrepresent, and thereby to render odious the constitution, was in the objection, solemnly urged against this clause, that it authorized the president to fill vacancies in the senate itself, occurring during the recess; a power, which, in another clause of the constitution, was expressly confided to the state executive. It is wholly unnecessary, however, now to dwell upon this preposterous suggestion, since it does not admit of a doubt, that the power given to the president is applicable solely to appointments to offices under the United States, provided for by the constitution and laws of the Union. It is only another proof of the gross exaggerations, and unfounded alarms, which were constantly resorted to for the purpose of defeating a system, which [Volume 4, Page 122] could scarcely fail of general approbation, if it was fairly understood.
§ 1551. The propriety of this grant is so obvious, that it can require no elucidation. There was but one of two courses to be adopted; either, that the senate should be perpetually in session, in order to provide for the appointment of officers; or, that the president should be authorized to make temporary appointments during the recess, which should expire, when the senate should have had an opportunity to act on the subject. The former course would have been at once burthensome to the senate, and expensive to the public. The latter combines convenience, promptitude of action, and general security.
§ 1552. The appointments so made, by the very language of the constitution, expire at the next session of the senate; and the commissions given by him have the same duration. When the senate is assembled, if the president nominates the same officer to the office, this is to all intents and purposes a new nomination to office; and, if approved by the senate, the appointment is a new appointment, and not a mere continuation of the old appointment. So that, if a bond for fidelity in office has been given under the first appointment and commission, it does not apply to any acts done under the new appointment and commission.
§ 1553. The language of the clause is, that the president shall have power to fill up vacancies, that may happen during the recess of the senate. In 1813, President Madison appointed and commissioned ministers to negotiate the treaty of peace of Ghent during the recess of the senate; and a question was made, whether he had a constitutional authority so to do, there being no vacancy of any existing office; but this being the creation of a new office. The senate, at their next session, are said to have entered a protest against such an exercise of power by the executive. On a subsequent occasion, (April 20, 1822,) the senate seem distinctly to have held, that the president could not create the office of minister, and make appointments to such an office during the recess, without the consent of the senate. By "vacancies" they understood to be meant vacancies occurring from death, resignation, promotion, or removal. The word "happen" had relation to some casualty, not provided for by law. If the senate are in session, when offices are created by law, which have not as yet been filled, and nominations are not then made to them by the president, he cannot appoint to such offices during the recess of the senate, because the vacancy does not happen during the recess of the senate. In many instances, where offices are created by law, special power is on this very account given to the president to fill them during the recess; and it was then said, that in no other instances had the president filled such vacant offices without the special authority of law.
The Founders' Constitution
Volume 4, Article 2, Section 2, Clauses 2 and 3, Document 58
The University of Chicago Press
Story, Joseph. Commentaries on the Constitution of the United States. 3 vols. Boston, 1833.