!

The Recess Appointments Clause

SCOTUSource Report The mission of The Constitutional Sources Project is to increase understanding, facilitate research, and encourage discussion of the United States Constitution by connecting individualsincluding students, teachers, lawyers, and judgeswith the documentary history of its creation, ratification, and amendment. This research report was prepared by Harvard Law School SCOTUSource Fellow Christina Lee (JD14), Georgetown Law Student and ConSource Summer Research Fellow, Laura Livingston, ConSource staff members, and Carl Cecere, a Texas-based appellate attorney and member of the ConSource Legal Advisory Board.

2!

Table of Contents The Presidents Authority Under the Appointments Clause ........................................ 2 a. British Parliamentary Practice.....................................................................................................2 b. State Constitutions Pre-Dating the Federal Constitution......................................................2 c. State Practice Pre-Dating the Federal Constitution ................................................................6 d. Constitutional Convention Debates..........................................................................................7 e. State Ratification Debates ...........................................................................................................8 f. Anti-Federalist & Federalist Papers .........................................................................................12 g. Early American Treatises ..........................................................................................................16 h. Congressional Records from First Congress .........................................................................18 i. Presidential Practice During the First Presidential Administration.....................................19 The Senates Advice and Consent Function under the Appointments Clause ........... 20 a. State Constitutions Pre-Dating the Federal Constitution ....................................................20 b. State Practice Pre-Dating the Federal Constitution..............................................................25 c. Constitutional Convention Debates ........................................................................................26 d. State Ratification Debates ........................................................................................................27 e. Anti-Federalist & Federalist Papers.........................................................................................28 f. Early American Treatises and Pamphlets................................................................................31 g. Miscellaneous ..............................................................................................................................34 The Recess Appointments Clause............................................................................... 35 a. Intellectual Influences ................................................................................................................35 b. British Parliamentary Practice ..................................................................................................36 c. State Constitutions Pre-Dating the Federal Constitution ....................................................36 d. State Practice Pre-Dating the Federal Constitution..............................................................39 e. Early Understandings of the Term Recess .........................................................................41 f. Constitutional Convention Debates.........................................................................................43 g. State Ratification Debates .........................................................................................................43 h. Anti-Federalist & Federalist Papers.........................................................................................45 i. Early American Treatises ...........................................................................................................47 j. Contemporaneous Dictionary Definitions..............................................................................49 k. Congressional Records from the First Congress...................................................................50 l. Presidential Practice During the First Presidential Administration.....................................50

1!

! The Presidents Authority Under the Appointments Clause (Article II, Sec. 2) Citation: Quote: U.S. CONST. art. II, 2, cl. 2, available at http://consource.org/document/united-states-constitution/. [The President] shall nominate, and, by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law 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.

a. British Parliamentary Practice Citation: THE FEDERALIST NO. 69 (Alexander Hamilton), available at http://consource.org/document/the-federalist-no-69-1788-314/#50fe46c7fbed7d7227b9b8fc.

Background: In this Federalist paper, Alexander Hamilton compares the role of the President in the Appointments Clause to the role of the King in the appointments process in Great Britain. While the British King was empowered to appoint all officers and unilaterally create new offices, the Constitution limits the Presidents appointment power by requiring the advice and consent of the Senate. Quote: The President is to nominate and with the advice and consent of the Senate to appoint Ambassadors and other public Ministers, Judges of the Supreme Court, and in general all officers of the United States established by law and whose appointments are not otherwise provided for by the Constitution. The King of Great-Britain is emphatically and truly stiled [sic] the fountain of honor. He not only appoints to all offices, but can create offices. He can confer titles of nobility at pleasure; and has the disposal of an immense number of church preferments [sic]. There is evidently a great inferiority, in the power of The President in this particular, to that of the British King ~~~ b. State Constitutions Pre-Dating the Federal Constitution 1. Maryland Citation: MD. CONST. of 1776, art. XLVIII, available at http://consource.org/document/constitution-of-maryland-1776-11-11/.

Background: The Maryland Constitution of 1776 provided for a bicameral legislature, the General Assembly, which had power to choose both the Governor and the Council to the Governor. The legislature held most of the state governments power, but the Governor, with the advice and consent of his Council

2!

! (chosen by the legislature), could appoint certain state officials. Here, the states constitution explains the Governors appointment powers. Quote: XLVIII: That the Governor, for the time being, with the advice and consent of the Council, may appoint the Chancellor, and all Judges and Justices, the Attorney-General, Naval Officers, officers in the regular land and sea service, officers of the militia, Registers of the Land Office, Surveyors, and all other civil officers of government (Assessors, Constables, and Overseers of the roads only excepted) and may also suspend or remove any civil officer who has not a commission, during good behaviour [sic]; and may suspend any militia officer, for one month: and may also suspend or remove any regular officer in the land or sea service: and the Governor may remove or suspend any militia officer, in pursuance of the judgment of a Court Martial. ~~~ 2. Massachusetts Citation: MASS. CONST. of 1780, art. IX, available at http://consource.org/document/constitution-of-massachusetts-1780-1025/.

Background: Under the states 1780 Constitution, Massachusetts executive branch was composed of a Governor, the supreme executive magistrate, and his ninemember council. The governor, along with the advice and consent of an executive council, was empowered to make most appointments. Quote: Art. IX. All judicial officers, the attorney-general, the solicitor-general, all sheriffs, coroners, and registers of probate, shall be nominated and appointed by the governor, by and with the advice and consent of the council; and every such nomination shall be made by the governor, and made at least seven days prior to such appointment. ~~~ 3. New Hampshire Citation: N.H. CONST. of 1776, art. 46, available at http://bit.ly/1aEG7Br.

Background: New Hampshires 1776 Constitution vested most of the governments power in the states Executive Branch. The states Executive Branch consisted of the governor and his Executive Council, and held sole veto power over the General Courts legislation. The Executive Branch also had the authority to call, adjourn, and dissolve the General Court. Article 46 details the Executive Branchs appointments power. Quote: Art. 46: All judicial officers, the attorney general, and all officers of the navy, and general and field officers of the militia, shall be nominated and appointed by the governor and council; and every such nomination shall be made at

3!

! least three days prior to such appointment; and no appointment shall take place, unless a majority of the council agree thereto. ~~~ 4. North Carolina Citation: N.C. CONST. of 1776, art. XXXIII, available at http://consource.org/document/constitution-of-north-carolina-1776-1218/.

Background: The 1776 North Carolina Constitution vested most of the governments power in the states popularly elected bicameral legislature, the General Assembly. The General Assembly could both elect and remove the governor. Article XXXIII provides for the Governors limited role in the appointments process. Quote: XXXIII. That the Justices of the Peace, within their respective counties in this State, shall in future be recommended to the Governor for the time being, by the Representatives in General Assembly; and the Governor shall commission them accordingly: and the Justices, when so commissioned, shall hold their offices during good behaviour [sic], and shall not be removed from office by the General Assembly, unless for misbehaviour [sic], absence, or inability. ~~~ 5. Pennsylvania Citation: PA. CONST. of 1776, 20, available at http://consource.org/document/constitution-of-pennsylvania-1776-9-28/.

Background: Pennsylvanias 1776 Constitution is the states first constitution following the passage of the Declaration of Independence and is widely considered to be the most democratic state constitution of the revolutionary era. This constitution did not create any position for state governor; instead, the constitution provided for a twelve-member executive council, which elected a president and a vice president. The president and vice president were powerless to act without the consent of a majority of the council. Section 20 details the councils involvement in the states appointments process. Quote: SECT. 20. The president, and in his absence the vice-president, with the council, five of whom shall be a quorum, shall have power to appoint and commissionate [sic] judges, naval officers, judge of the admiralty, attorney general and all other officers, civil and military, except such as are chosen by the general assembly or the people, agreeable to this frame of government, and the laws that may be made hereafter; and shall supply every vacancy in any office, occasioned by death, resignation, removal or disqualification, until the office can be filled in the time and manner directed by law or this constitution. 4!

! ~~~ 6. South Carolina Citation: S.C. CONST. of 1776, art. XXV, available at http://consource.org/document/constitution-of-south-carolina-1776-3-26.

Background: South Carolinas bicameral legislature held most of the state governments power. The popularly elected lower house, the General Assembly, elected the Legislative Council, the upper house. The General Assembly also elected the states President. The Presidents advisory Privy Council was composed of the vice president, three members elected by the legislative council, and three members of the General Council. Section XXV provides for the Presidents role in the appointments process. Quote: XXV. That the president and commander-in-chief, with the advice and consent of the privy council, may appoint during pleasure, until otherwise directed by resolution of the general assembly and legislative council, all other necessary officers, except such as are by law directed to be otherwise chosen. ~~~ Citation: S.C. CONST. of 1778, art. XXXII, available at http://avalon.law.yale.edu/18th_century/sc02.asp.

Background: In 1778, South Carolina entirely replaced its 1776 constitution. The executive was renamed Governor, but was still elected by the legislature. Under the states 1778 constitution, the upper house, now the Senate, was no longer elected by the General Assembly. Instead, the Senate was elected by qualified voters (white male landowners with certain age and religious qualifications). Section XXXII provides for the governors role in the appointments process. Quote: XXXII. That the governor and commander-in-chief, with the advice and consent of the privy council, may appoint during pleasure, until otherwise directed by law, all other necessary officers, except such as are now by law directed to be otherwise chosen. ~~~ 7. Virginia Citation: VA. CONST of 1776, available at http://consource.org/document/constitution-of-virginia-1776-6-29/.

Background: In Virginia, an Executive Council provided a considerable check on the Governors appointment power. Though the Governor could convene the Council at his will, he was powerless to conduct legislative affairs without the Councils advice. Here, Virginias 1776 Constitution provides for the Governors role in the appointments process. ! 5!

! Quote: The Governor, with the advice of the Privy Council, shall appoint Justices of the Peace for the counties; and in case of vacancies, or a necessity of increasing the number hereafter, such appointments to be made upon the recommendation of the respective County Courts ~~~

c. State Practice Pre-Dating the Federal Constitution 8. New York Citation: THE FEDERALIST NO. 69 (Alexander Hamilton), available at http://consource.org/document/the-federalist-no-69-1788-314/#50fe46c7fbed7d7227b9b8fc.

Background: In New York, the Governor shared his appointments power with a Council composed of four senators who were selected by the state assembly. Should the Council be divided on an appointment, the Governor had the deciding vote. In this essay, Hamilton highlights the differences in the appointments procedures in the New York constitution and the United States Constitution. Hamilton also explains why the United States Constitution better safeguards against private interests unduly influencing the appointments process. Quote: Nor is [the Presidents power of appointment] equal to that of the Governor of New-York, if we are to interpret the meaning of the constitution of the State by the practice which has obtained under it. The power of appointment is with us lodged in a Council composed of the Governor and four members of the Senate chosen by the Assembly. The Governor claims and has frequently exercised the right of nomination, and is entitled to a casting vote in the appointment. If he really has the right of nominating, his authority is in this respect equal to that of The President, and exceeds it in the article of the casting vote. In the national government, if the Senate should be divided, no appointment could be made: In the government of New-York, if the Council should be divided the Governor can turn the scale and confirm his own nomination. If we compare the publicity which must necessarily attend the mode of appointment by The President and an entire branch of the national Legislature, with the privacy in the mode appointment by the Governor of New-York, closeted in a secret apartment with at most four, and frequently with only two persons, and if we at the same time consider how much more easy it must be to influence the small number of which a Council of Appointment consist than the considerable number of which the national Senate would consist, we cannot hesitate to pronounce, that the power of the Chief Magistrate of this State in the disposition of offices must in practice be greatly superior to that of the Chief Magistrate of the Union. ~~~

6!

! d. Constitutional Convention Debates Citation: James Madisons Notes on the Constitutional Convention (June 5, 1787) (Statement of James Wilson), available at http://consource.org/document/james-madisons-notes-of-theconstitutional-convention-1787-6-5/.

Background: The delegates to the Constitutional Convention were divided over where to vest the general appointments power. One groups concern for a corrupt legislative appointment process led some to favor vesting the power in a strong executive. Conversely, others feared that a strong executive would resemble a monarch. At the convention, James Wilson expressed his concerns for the appointment of judges by the legislature. Quote: Experience shewed [sic] the impropriety of such appointments by numerous bodies. Intrigue, partiality, and concealment were the necessary consequences. A principal reason for unity in the executive was that officers might be appointed by a single, responsible person. ~~~ Citation: James Madisons Notes on the Constitutional Convention (July 18, 1787), available at http://consource.org/document/james-madisons-notes-of-theconstitutional-convention-1787-7-18/.

Background: Initially suggested by Alexander Hamilton, the Senate confirmation step of the appointments process was a last-minute compromise between vesting the appointment power in the entire legislature and vesting the power in the executive alone. Though not immediately popular, Hamiltons plan was ultimately adopted after Nathaniel Gorham reintroduced the notion of advice and consent as a way for the executive to appoint judges in the mode prescribed by the constitution of Massachusetts. Quote: Mr. Ghorum, wd. [sic] prefer an appointment by the 2d branch to an appointmt. [sic] by the whole Legislature; but he thought even that branch too numerous, and too little personally responsible, to ensure a good choice. He suggested that the Judges be appointed by the Execuve [sic]. with the advice & consent of the 2d branch, in the mode prescribed by the constitution of Masts. This mode had been long practised [sic] in that country, & was found to answer perfectly well. ~~~ Citation: James Madisons Notes on the Constitutional Convention (July 21, 1787), available at http://press-pubs.uchicago.edu/founders/documents/a2_2_23s1.html.

Background: The decision to vest the appointments power jointly in the executive and senate was seen as a way of minimizing the influence of private interests and

7!

! involving all states in the appointments process. The president was viewed as a national officer representative of the countrys overall interests. Quote: Mr. Madison stated as his reasons for the motion. 1 that it secured the responsibility of the Executive who would in general be more capable & likely to select fit characters than the Legislature, or even the 2d. b. of it, who might hide their selfish motives under the number concerned in the appointment- 2 that in case of any flagrant partiality or error, in the nomination, it might be fairly presumed that 2/3 of the 2d. branch would join in putting a negative on it. 3. that as the 2d. b. was very differently constituted when the appointment of the Judges was formerly referred to it, and was now to be composed of equal votes from all the States, the principle of compromise which had prevailed in other instances required in this that their shd. [sic] be a concurrence of two authorities, in one of which the people, in the other the states, should be represented. The Executive Magistrate wd [sic] be considered as a national officer, acting for and equally sympathizing [sic] with every part of the U. States. If the 2d. branch alone should have this power, the Judges might be appointed by a minority of the people, tho' [sic] by a majority, of the States, which could not be justified on any principle as their proceedings were to relate to the people, rather than to the States: and as it would moreover throw the appointments entirely into the hands of ye Nthern [sic] States, a perpetual ground of jealousy & discontent would be furnished to the Southern States. ~~~

e. State Ratification Debates 1. Pennsylvania Citation: An American Citizen, On the Federal Government I, II, III, Independent Gazetteer, September 26-29, 1787, available at http://rotunda.upress.virginia.edu/founders/default.xqy?keys=RNCN-print02-02-02-0002-0002-0011 (subscription required).

Background: Tench Coxes essays were some of the first major defenses of the Constitution. In this essay, he discusses what he views as the limited powers of the President under the Constitution. Quote: Our President will fall very far short indeed of any prince in his annual income, which will not be hereditary, but the absolute allowance of the people passing through the hands of their other servants from year to year as it becomes necessary. There will be no burdens on the nation to provide for his heir or other branches of his family. Tis probable, from the state of property in America and other circumstances, that many citizens will exceed him in show and expense, those dazzling trappings of kingly rank and power. He will have no authority to make a treaty without two-thirds of the Senate, nor can he appoint ambassadors or other great officers without their 8!

! approbation, which will remove the idea of patronage and influence, and of personal obligation and dependence. The appointment of even the inferior officers may be taken out of his hands by an act of Congress at any time; he can create no nobility or titles of honor, nor take away offices during good behavior. His person is not so much protected as that of a member of the House of Representatives; for he may be proceeded against like any other man in the ordinary course of law. He appoints no officer of the separate states. He will have no influence from placemen in the legislature, nor can he prorogue or dissolve it. He will have no power over the treasures of the state; and lastly, as he is created through the Electors by the people at large, he must ever look up to the support of his creators. From such a servant with powers so limited and transitory, there can be no danger, especially when we consider the solid foundations on which our national liberties are immovably fixed by the other provisions of this excellent Constitution. Whatever of dignity or authority he possesses is a delegated part of their majesty and their political omnipotence, transiently vested in him by the people themselves for their own happiness ~~~ Citation: Thomas McKean, Speech at Convention (November 24, 1787), available at http://rotunda.upress.virginia.edu.ezpprod1.hul.harvard.edu/founders/default.xqy?keys=RNCN-print-02-02-020003-0002 (subscription required).

Background: In response to objections raised during the Pennsylvania ratifying convention, here Thomas McKean defends the constitutional design of shared appointments power between the Senate and the President. Quote: The Senators have a share in the appointment of certain officers, and are to be the judges on the impeachment of such officers. This is blending the executive with the legislative and judicial departments, and is likely to screen the offenders impeached because of the concurrence of a majority of the Senate in their appointment.The President is to nominate to office, and with the advice and consent of the Senate appoint officers, so that he is the responsible person, and when any such impeachment shall be tried, it is more than probable, that not one of the Senate, who concurred in the appointment, will be a Senator, for the seats of a third part are to be vacated every two years, and of all in six. As to the Senators having a share in the executive power, so far as to the appointment of certain officers, I do not know where this restraint on the President could be more safely lodged. Some may think a privy councillor [sic] might have been chosen by every state, but this could little mend the matter if any, and it would be a considerable additional expense to the people. Nor need the Senate be under any necessity of sitting constantly, as has been alleged, for there is an express provision made to enable the President to fill up all vacancies that may happen during their recess; the commissions to expire at the end of the next sessions. The President of the United States must nominate to all offices, before the persons can be chosen; he here consents and becomes liable. 9!

! [reasons in favor of plan] In Pennsylvania, there is no responsibility in Council; because the president has given up his right of nomination. And they appoint by ballot, and therefore are not responsible. There is scarce a king in Europe that has not some check upon him in the appointment of officers.Senators have a share in the appointment of certain officers, and yet must try them on impeachment which blends the executive and judicial officesThis resembles the constitution of Great Britain which is deemed the best balanced in the world. It holds in the strongest light in the constitution of Pennsylvania where the Executive Council alone appoint and try impeachments. ~~~ Citation: James Wilson, Pennsylvania Ratification Convention (December 11, 1787), available at http://press-pubs.uchicago.edu/founders/documents/a2_2_23s3.html.

Background: In this speech, James Wilson compares the Presidents relationship to the Senate in nominating officers to his overall role in the treaty process. To Wilson, just as the Senate cannot make any treaty without the Presidents approval, the Senate cannot appoint any new officers without first receiving the Presidents nomination. Wilsons comparison also highlights the importance of executive involvement in certain legislative activities. Quote: We are told that the share which the Senate have in making treaties is exceptionable; but here they are also under a check, by a constituent part of the government, and nearly the immediate representative of the people--I mean the President of the United States. They can make no treaty without his concurrence. The same observation applies in the appointment of officers. Every officer must be nominated solely and exclusively by the PresidentAnd let it be attended to, that, even in the making of treaties, the states are immediately represented, and the people mediately [sic] represented; two of the constituent parts of government must concur in making them. Neither the President nor the Senate, solely, can complete a treaty; they are checks upon each other, and are so balanced as to produce security to the people. ~~~ 2. Virginia Citation: Richard Henry Lee to Edmund Randolph (October 16, 1787), available at http://rotunda.upress.virginia.edu/founders/RNCN-02-08-02-0001-00450001 (subscription required).

Background: In this letter, Richard Henry Lee expresses concern about the joint power of the President and Senate to appoint all civil and military officers. Quote: It has hitherto been supposed a fundamental maxim that in governments rightly balanced, the different branches of legislature should be unconnected, 10!

! and that the legislative and executive powers should be separate:In the new constitution, the president and senate have all the executive and two thirds of the legislative power. In some weighty instances (as making all kinds of treaties which are to be the laws of the land) they have the whole legislative and executive powers. They jointly, appoint all officers civil and military, and they (the senate) try all impeachments either of their own members, or of the officers appointed by themselves. ~~~ Citation: George Mason, Letter to John Lamb (June 9, 1788), available at http://rotunda.upress.virginia.edu/founders/RNCN-02-09-02-0003-00700005 (subscription required).

Background: George Mason opposed the new Constitution but eventually agreed to ratify; though, he fought for amending the Constitution to include a bill of rights. In this letter to John Lamb, Mason outlines his proposed amendments, which including vesting the appointments power in the president and an executive council. Quotes: That there shall be a constitutional responsible Council, to assist in the Administration of Government, with the Power of chusing out of their own Body, a President, who in case of the Death, Resignation or Disability of the President of the United States, shall act, pro tempore, as Vice President instead of a Vice President elected in the Manner prescribed by the Constitution; and that the Power of making Treaties, appointing Ambassadors, other public Ministers or Consuls, Judges of the Supreme Courts, and all other Officers of the United States, whose appointments are not otherwise provided for by the Constitution, and which shall be established by Law, be vested in the president of the United States with the Assistance of the Council so to be appointed. ~~~ Citation: James Monroe, Speech during the Convention (June 10, 1788), available at http://rotunda.upress.virginia.edu/founders/RNCN-02-09-02-0004-00110001 (subscription required).

Background: Although James Monroe eventually voted to ratify the Constitution, he had reservations about the Constitutions design. Specifically, he worried about the nature of representation in Congress and how that would affect decisions by the federal government. Quote: He is to nominate, and by and with the advice and consent of the Senate, to appoint Ambassadors, other public Ministers, and Consuls, Judges of the Supreme Court, and all other officers of the United States. The concurrence of a bare majority of those who may be present, will enable him to do these important acts. It does not require the consent of two-thirds, even of those who may be present. Thus, I conceive the Government is put entirely into

11!

! the hands of seven States; indeed into the hands of two-thirds of a majority. The Executive branch is under their protection, and yet they are freed from a direct charge of combination. Upon reviewing this Government, I must say, under my present impression, I think it a dangerous Government, and calculated to secure neither the interests, nor the rights of our countrymen. Under such a one, I shall be averse to embark the best hopes and prospects of a free people. We have struggled long to bring about this revolution, by which we enjoy our present freedom and security. Why then this hastethis wild precipitation? ~~~ f. Anti-Federalist & Federalist Papers Citation: THE FEDERALIST NO. 76 (Alexander Hamilton), available at http://consource.org/document/the-federalist-no-76-1788-4-1/

Background: In this essay, Alexander Hamilton discusses the importance of vesting the executive with primary appointments authority. To Hamilton, vesting the appointments power in a single executive was the only way to ensure that appointments were based on merit and not political considerations. Quote: Those who have themselves reflected upon the subject, or who have attended to the observations made in other parts of these papers, in relation to the appointment of the President, will I presume agree to the position that there would always be great probability of having the place supplied by a man of abilities, at least respectable. Premising this, I proceed to lay it down as a rule, that one man of discernment is better fitted to analise [sic] and estimate the peculiar qualities adapted to particular offices, than a body of men of equal, or perhaps even of superior discernment. The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will on this account feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. He will have fewer personal attachments to gratify than a body of men, who may each be supposed to have an equal number, and will be so much the less liable to be misled by the sentiments of friendship and of affection. A single well directed man by a single understanding, cannot be distracted and warped by that diversity of views, feelings and interests, which frequently distract and warp the resolutions of a collective body. There is nothing so apt to agitate the passions of mankind as personal considerations, whether they relate to ourselves or to others, who are to be the objects of our choice or preference. Hence, in every exercise of the power of appointing to offices by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances will of 12!

! course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight. ~~~ Citation: THE FEDERALIST NO. 76 (Alexander Hamilton), available at http://consource.org/document/the-federalist-no-76-1788-4-1/.

Background: Here, again, Hamilton underscores his support for vesting a robust appointments power in the executive. Quote: It is not easy to conceive a plan better calculated than this, to produce a judicious choice of men for filling the offices of the Union; and it will not need proof that on this point must essentially depend the character of its administration. It will be agreed on all hands, that the power of appointment in ordinary cases ought to be modified in one of three ways. It ought either to be vested in a single man-or in a select assembly of a moderate number-or in a single man with the concurrence of such an assembly. The exercise of it by the people at large, will be readily admitted to be impracticable; as, waving every other consideration it would leave them little time to do any thing else. When therefore mention is made in the subsequent reasonings [sic] of an assembly or body of men, what is said must be understood to relate to a select body or assembly of the description already given. The people collectively from their number and from their dispersed situation cannot be regulated in their movements by that systematic spirit of cabal and intrigue, which will be urged as the chief objections to reposing the power in question in a body of men. ~~~ Citation: Native of Virginia: Observations upon the Proposed Plan of Federal Government, 2 April, 1788, available at http://rotunda.upress.virginia.edu/founders/RNCN-02-09-02-0003-0010 (subscription required).

Background: Most likely written by Richard Henry Lee, this tract goes through each clause of the Constitution and answers possible objections. In this specific section, Lee discusses the appointments and treaty-making power of the President. Quote: He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other officers of the United, States, whose appointments are not herein otherwise provided for, and which shall be established by law. But the Congress may, by law, 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. The Constitution has here lessened the authority of the President, by making the assent of two-thirds of the Senate necessary in the important cases of ! 13!

! making treaties, in appointing Ambassadors, the Judges of the Supreme Court, and the great officers of State. Writers upon government have established it as a maxim, that the Executive and Legislative authority should be kept separate. But the position should be taken with considerable latitude. The Executive authority here given to a branch of the Legislature, is no novelty, in free governments. In England, the Executive, or Cabinet Council, is taken indifferently from either House of Parliament. In the States of New York and Jersey, the Senate not only act as an Executive Council, but also form a part of the Court of Appeals. ~~~ Citation: George Mason, Objections to the New Constitution, Massachusetts Centinel, November 21, 1787, available at http://rotunda.upress.virginia.edu/founders/RNCN-02-04-02-0003-0080 (subscription required).

Background: Published in the Massachusetts Centinel, George Mason outlined his objections to the Constitution, specifically the lack of bill of rights and the House of Representatives lack of power in relation to the other bodies. Mason also believed that the lack of a constitutional council for the President meant that he would not receive proper information and advice and that the President and Senate were improperly connected due to the shared appointments power. Quote: The President of the United States has no Constitutional Council (a thing unknown in any safe and regular government) he will therefore be unsupported by proper information and advice; and will generally be directed by minions and favouritesor he will become a tool to the Senateor a Council of State will grow out of the principal officers of the great departments; the worst and most dangerous of all ingredients for such a Council, in a free country; for they may be induced to join in any dangerous or oppressive measures, to shelter themselves, and prevent an inquiry into their own misconduct in office: Whereas had a constitutional council been formed (as was proposed) of six members, viz. two from the eastern, two from the middle, and two from the southern States, to be appointed by vote of the States in the House of Representatives, with the same duration and rotation of office as the Senate, the Executive would always have had safe and proper information and advice: The President of such a Council might have acted as Vice-President of the United States, pro tempore, upon any vacancy or disability of the Chief Magistrate; and long continued sessions of the Senate would in a great measure have been prevented. From this fatal defect of a constitutional council has arisen the improper power of the Senate, in the appointment of publick officers, and the alarming dependence and connection between that branch of the Legislature and the Supreme Executive. Hence also sprung that unnecessary and dangerous officer, the Vice-President, who for want of other employment, is made President of the Senate; thereby dangerously blending the Executive and Legislative powers; 14!

! besides always giving to some one of the States an unnecessary and unjust preeminence over the others. ~~~ Citation: Richard Henry Lee, Objections to the Constitution, Salem Mercury, January 8, 1788, available at http://rotunda.upress.virginia.edu/founders/RNCN-02-0502-0002-0107 (subscription required).

Background: Quotes from Richard Henry Lees objections and proposed amendments to the Constitution were published in the Salem Mercury. Richard Henry Lee criticized the connection and balance of powers between the Senate and the President. Quote: That the legislative and executive powers are blended togetherThat the President and Senate have all the executive, and two thirds of the legislative, powerand, in some weighty instances, (as making treaties, which are to be the laws of the land) the whole legislative and executive powersThat, they appoint all civil and military officersand the Senate try all impeachments, even of their own members, or officers by them appointedThat this formidable combination of power is without responsibilityThat the only check in favour of the democratick principle is the House of Representatives, which is a mere shred or rag of representation. ~~~ Citation: Luther Martin, Genuine Information (1787), reprinted in HERBERT J. STORING, THE COMPLETE ANTI-FEDERALIST (1981), available at http://www.consource.org/document/luther-martin-genuine-information1787-12-28/.

Background: Luther Martin, a prominent anti-federalist, was most concerned about the impact of a powerful central government on smaller states in the republic, specifically Maryland. Martins Genuine Information, which was initially published in the MARYLAND GAZETTE and later reprinted and popularly circulated as a pamphlet, expresses these concerns in relationship to the appointments process. Quote: To that part of this article also, which gives the President a right to nominate and with the consent of the senate to appoint all officers, civil and military, of the United States, there was considerable oppositionit was said that the person who nominates, will always in reality appoint, and that this was giving the President a power and influence, which together with the other powers, bestowed upon him, would place him above all restraint or controul [sic]That these circumstances, combined together, will enable him, when he pleases, to become a King in name, as well as in substance ~~~

15!

! Citation: Hampden, Pittsburgh Gazette, February 16, 1788, available at http://rotunda.upress.virginia.edu/founders/RNCN-02-02-02-0004-00020015 (subscription required).

Background: Under the pseudonym Hampden, William Findley wrote this essay critiquing the U.S. Constitution. Here, he describes the appointments process as vested primarily in the Senate, with the President only acting as a nominating officer. Quote: Of the same kind, and full as inconsistent and dangerous, is the first clause of the second Article compared with the second clause of the second section, we first find the President fully and absolutely vested with the executive power, and presently we find the most important and most influential portion of the executive power, viz., the appointment of all officers vested in the Senate; with whom the President only acts as a nominating member. ~~~ g. Early American Treatises Citation: 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1525, available at http://www.constitution.org/js/js_337.htm.

Background: In detailing the drafting of the United States Constitution, Joseph Story highlights the Framers rationale for vesting the appointments power in both the President and the Senate. Here, Story explains that the presidents power to nominate is incomplete without the Senates confirmation. Story describes how vesting the appointments power in both the President and the Senate ensured that each branch acted as a check on the others power. Quote: 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

16!

! responsibility to present another candidate, entirely qualified for the office, will be complete and unquestionable. ~~~ Citation: 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1528, available at http://www.constitution.org/js/js_337.htm.

Background: Here, Story again explains that vesting the appointments power in both the Senate and the Executive ensures that neither branch exerts too much influence over the appointments process. Story also stresses that these checks and balances carefully preserve the separation of powers between the different branches of government. Quote: 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 [sic], 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 of honours [sic] 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 ~~~ Citation: 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1529-31, available at http://www.constitution.org/js/js_337.htm.

Background: Here, Story explains that the Appointments Clause enables Congress to use its discretion to empower the President via legislation to appoint certain inferior officers. However, the Constitution is unclear on what exactly constitutes an inferior office. ! 17!

! Quote: 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 [sic] 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 ~~~

h. Congressional Records from First Congresses Citation: John Adams, Notes of a Debate in the Senate (July 15, 1789), reprinted in THE WORKS OF JOHN ADAMS (Charles Francis ed. 1850), available at http://presspubs.uchicago.edu/founders/documents/a2_2_2-3s44.html.

Background: This Senate debate focused on the presidents powers of appointment and removal. The involvement of both the Senate and the President in the appointments power was characterized as a way to avoid despotic government. Nevertheless, it was believed that the Senates appointment power was secondary to the Presidents. Quote: It is not an equal sharing of the power of appointment between the President and Senate. The Senate are only a check to prevent impositions on the President. The minister an agent, a deputy to the great executive. ~~~ Citation: James Madison, Speech to Congress on the Presidents Powers (July 16, 1789), available at http://www.constitution.org/jm/17890616_removal.htm.

18!

! Background: In a broader discussion regarding the Presidents removal powers, James Madison expressed his support for the separation of powers between the Executive and Legislative branches. Though the Senates advice and consent role in the appointments process is an executive duty, the President is otherwise vested with all executive power; the Senates involvement in this process is therefore secondary to the Presidents leadership through nominations. Quote: The constitution affirms, that the executive power shall be vested in the president: Are there exceptions to this proposition? Yes there are. The constitution says that, in appointing to office, the senate shall be associated with the president, unless in the case of inferior officers, when the law shall otherwise direct. Have we a right to extend this exception? I believe not. If the constitution has invested all executive power in the president, I venture to assert, that the legislature has no right to diminish or modify his executive authority. ~~~ i. Presidential Practice During the First Presidential Administrations Citation: George Washington to Senate Committee on Treaties and Nominations (Aug. 10, 1789) reprinted in 30 JOHN C. FITZPATRICK, THE WRITINGS OF GEORGE WASHINGTON FROM THE ORIGINAL MANUSCRIPT SOURCES, 17451799, 377-79 (1931), available at http://presspubs.uchicago.edu/founders/documents/a2_2_2-3s12.html.

Background: Here, George Washington explains his views on the appointments power being jointly vested in the President and the Senate. To Washington, though the Senates consent is needed to complete an appointment, the President leads the process. Quote: The President has the power by and with the advice and consent of the Senate, to make treaties and to appoint Officers. The Senate when these powers are exercised, is evidently a Council only to the President, however [necessary] its concurrence may be to his Acts. It seems incident to this relation between them, that not only the time but the place and manner of consultation should be with the PresidentIn the appointment to offices, the agency of the Senate is purely executive, and they may be summoned to the PresidentThe manner of consultation may also vary. The indisposition of the President may supersede the mere question of conveniency [sic]. The inclination or ideas of different Presidents may be different. The opinions both of President and Senators as to the proper manner may be changed by experience. In some kinds of business it may be found best for the President to make his propositions orally and in person, in others by written message. On some occasions it may be most convenient that the President should attend the deliberations and decisions on his propositions; on others that he should not; or that he should not attend the whole of the time and for giving their consent and advice in either the presence or absence of the 19!

! President, leaving him free to use the mode and place that may be found most eligible and accordant with other business which may be before him at the time. ~~~ The Senates Advice and Consent Function Under the Appointments Clause (Article II, Sect. 2) a. State Constitutions Pre-Dating the Federal Constitution 1. Delaware Citation: DEL. CONST. of 1776, art. 12, available at http://consource.org/document/constitution-of-delaware-1776-9-21/.

Background: Delawares Executive branch consisted of a President and a Privy Council, both selected by the states bicameral legislature, the General Assembly. The President required the Privy Councils advice and consent to act. Article 12 describes the roles of the president and general assembly in the states appointments process. Quote: ART. 12. The president and general assembly shall by joint ballot appoint three justices of the supreme court for the State, one of whom shall be chief justice, and a judge of admiralty, and also four justices of the courts of common pleas and orphans' courts for each county, one of whom in each court shall be styled "chief justice," (and in case of division on the Ballot the president shall have an additional casting voice,) to be commissioned by the president under the great sealThe president and privy council shall appoint the secretary, the attorney-general, registers for the probate of wills and granting letters of administration, registers in chancery, clerks of the courts of common pleas and orphans' courts, and clerks of the peace ~~~ 2. Georgia Citation: GA. CONST. of 1777, art. LIII available at http://consource.org/document/constitution-of-georgia-1777-2-5/.

Background: Georgias l777 Constitution created a unicameral legislature, the House of Assembly, which held most of the governments power. The House of Assembly chose the Governor and his executive council, which jointly composed the Executive Branch. Article LIII describes the House of Assemblys appointments power. Quote: ART. LIII. All civil officers in each county shall be annually elected on the day of the general election, except justices of the peace and registers of probates, who shall be appointed by the house of assembly.

20!

! ~~~ 3. Maryland Citation: MD. CONST. of 1776, art. XIII, available at http://consource.org/document/constitution-of-maryland-1776-11-11/.

Background: The Maryland Constitution of 1776 provided for a bicameral legislature, the General Assembly, which had power to choose both the Governor and the Council to the Governor. Article XIII provides for the House of Delegates, the legislatures lower house, to unilaterally appoint certain offices. Quote: XIII. That the Treasurers (one for the western, and another for the eastern shore) and the Commissioners of the Loan Office, may be appointed by the House of Delegates, during their pleasure ~~~ 4. Massachusetts Citation: THE CHARTER OF MASSACHUSETTS BAY of 1691, reprinted in 1 THE FEDERAL AND STATE CONSTITUTIONS, COLONIAL CHARTERS, AND OTHER ORGANIC LAWS OF THE STATES, TERRITORIES, AND COLONIES NOR OR HERETOFORE FORMING THE UNITED STATES OF AMERICA 1789 (Francis Newton Thorpe, ed., 1909), available at http://consource.org/document/charter-ofmassachusetts-bay-1629-3-4/.

Background: Dating back to 1691, the Massachusetts colonial charter included an advice and consent function for a popularly elected Executive Council, in addition to the governors appointment power. This Executive Council played a nearly co-equal role to the Governors in the appointment process. Quote: Wee doe further Grant and Ordeyne [sic] that it shall and may be lawfull [sic] for the said Governour [sic] with the advice and consent of the Councill [sic] or Assistants from time to time to nominate and appoint Judges Commissioners of Oyer and Terminer Sherffs Provosts Marshalls Justices of the Peace and other Officers to Our Councill [sic] and Courts of Justice ~~~ Citation: MASS. CONST. of 1780, arts. VII & X, available at http://consource.org/document/constitution-of-massachusetts-1780-1025/.

Background: Massachusetts executive branch was composed of a Governor, the supreme executive magistrate, and his nine-member council, chosen by the states bicameral legislature, the General Court. The General Court held most of the power in the state, and each house could appoint its own members. Quote: Art. VII. The senate shall choose its own president, appoint its own officers, and determine its own rules of proceedings. 21!

! Art. X: The house of representatives shall be the judge of the returns, elections, and qualifications of its own members, as point out in the constitution; shall choose their own speaker, appoint their own officers, and settle the rules and order of proceeding in their own house. ~~~ 5. New Jersey Citation: N.J. CONST. of 1776, art. XII, available at http://consource.org/document/constitution-of-new-jersey-1776-7-2/.

Background: New Jerseys 1776 Constitution was hastily drafted and created no formal separation of powers. The popularly elected bicameral legislature held most of the governments power. The Legislative Council (the upper house) and General Assembly (the lower house) jointly elected the states Governor. The Governor was considered president of the Council, but he did not have veto power, nor did he have a general appointments power. Article XII provides for the Council and Assembly to jointly appoint state officials. Quote: XII. That the Judges of the Supreme Court shall continue in office for seven years: the Judges of the Inferior Court of Common Pleas in the several counties, Justices of the Peace, Clerks of the Supreme Court, Clerks of the Inferior Court of Common Pleas and Quarter Sessions, the AttorneyGeneral, and Provincial Secretary, shall continue in office for five years: and the Provincial Treasurer shall continue in office for one year; and that they shall be severally appointed by the Council and Assembly, in manner aforesaid, and commissioned by the Governor, or, in his absence, the VicePresident of the Council. Provided always, that the said officers, severally, shall be capable of being re-appointed, at the end of the terms severally before limited; and that any of the said officers shall be liable to be dismissed, when adjudged guilty of misbehaviour [sic], by the Council, on an impeachment of the Assembly. ~~~ 6. New York Citation: N.Y. CONST. of 1777, art. XXIII, available at http://consource.org/document/constitution-of-new-york-1777-4-20/.

Background: New Yorks 1777 Constitution vested the states bicameral legislature with lawmaking powers. The executive branch was composed of the Governor and a Council of Appointment, which consisted of four senators selected annually by the Assembly. Article XXIII describes the Council of Appointments leadership in the appointments process and the corresponding limitations on the Governors powers. Quote: XXIII. That all officers, other than those who, by this constitution, are directed to be otherwise appointed, shall be appointed in the manner 22!

! following, to wit: The assembly shall, once in every year, openly nominate and appoint one of the senators from each great district, which senators shall form a council for the appointment of the said officers, of which the governor for the time being, or the lieutenant governor, or the president of the senate, when they shall respectively administer the government, shall be president and have a casting voice, but no other vote; and with the advice and consent of the said council, shall appoint all the said officers; and that a majority of the said council be a quorum. And further, the said senators shall not be eligible to the said council for two years successively. ~~~ Citation: N.Y. CONST. of 1777, art. XXX, available at http://consource.org/document/constitution-of-new-york-1777-4-20/.

Background: Here, the 1777 New York Constitution explains the selection process for determining the senators to represent the state in the United States Congress. The governor did not participate in the process. Quote: XXX. That Delegates to represent this State in the general Congress of the United States of America be annually appointed as follows, to wit: The senate and assembly shall each openly nominate as many persons as shall be equal to the whole number of Delegates to be appointed; after which nomination they shall meet together, and those persons named in both lists shall be Delegates; and out of those persons whose names are not on both lists, onehalf shall be chosen by the joint ballot of the senators and members of assembly so met together as aforesaid. ~~~ 7. North Carolina Citation: N.C. CONST. of 1776, art. XIII, available at http://consource.org/document/constitution-of-north-carolina-1776-1218/.

Background: The 1776 North Carolina Constitution vested most of the governments power in the states popularly elected bicameral legislature, the General Assembly, which could both elect and remove the governor. Article XIII describes the General Assemblys broad appointments power. Quote: XIII. That the General Assembly shall, by joint ballot of both houses, appoint Judges of the Supreme Courts of Law and Equity, Judges of Admiralty, and Attorney-General, who shall be commissioned by the Governor, and hold their offices during good behavior. ~~~ 8. Pennsylvania

23!

! Citation: PA. CONST. of 1776, available at http://consource.org/document/constitution-of-pennsylvania-1776-9-28/.

Background: Pennsylvanias 1776 Constitution provided for a twelve-member executive council, which would then elect a president and a vice president. Despite the leadership roles existing within the council, the president and vice president were powerless to act without the consent of a majority of the council. Quote: The COUNCIL OF CENSORS; who shall meet together on the second Monday of November next ensuing their election; the majority of whom shall be a quorum in every case, except as to calling a convention, in which two-thirds of the whole number elected shall agree: And whose duty it shall be to enquire whether the constitution has been preserved inviolate in every part; and whether the legislative and executive branches of government have performed their duty as guardians of the people, or assumed to themselves, or exercised other or greater powers than they are intitled [sic] to by the constitution: They are also to enquire whether the public taxes have been justly laid and collected in all parts of this commonwealth, in what manner the public monies have been disposed of, and whether the laws have been duly executed. For these purposes they shall have power to send for persons, papers, and records; they shall have authority to pass public censures, to order impeachments, and to recommend to the legislature the repealing such laws as appear to them to have been enacted contrary to the principles of the constitution. ~~~ 9. South Carolina Citation: S.C. CONST. of 1776, art. XIX, available at http://consource.org/document/constitution-of-south-carolina-1776-3-26.

Background: South Carolinas bicameral legislature held most of the governments power. The popularly-elected lower house, the General Assembly, elected the Legislative Council, the upper house. The General Assembly also elected the states President. The Presidents advisory Privy Council was composed of the vice president, three members elected by the legislative council, and three members of the General Council. Article XIX provides for the General Assemblys leadership in the appointments process. Quote: XIX. That justices of the peace shall be nominated by the general assembly and commissioned by the president and commander-in-chief, during pleasure. They shall not be entitled to fees except on prosecutions for felony, and not acting in the magistracy, they shall not be entitled to the privileges allowed to them by law. ~~~

24!

! 10. Virginia Citation: VA. CONST. of 1776, available at http://consource.org/document/constitution-of-virginia-1776-6-29/.

Background: In Virginia, an Executive Council considerably checked the Governors appointments power. Though the Governor could convene the Council at his will, he was powerless to conduct legislative affairs without the Councils advice. Here, Virginias 1776 Constitution provides for the leadership of the two houses in the states bicameral legislature in the appointments process. Quote: The two Houses of Assembly shall, by joint ballot, appoint Judges of the Supreme Court of Appeals, and General Court, Judges in Chancery, Judges of Admiralty, Secretary, and the Attorney-General, to be commissioned by the Governor, and continue in office during good behaviour [sic].

b. State Practice Pre-Dating the Federal Constitution 1. Massachusetts Citation: JOHN ADAMS, THOUGHTS ON GOVERNMENT, reprinted in 4 THE WORKS OF JOHN ADAMS, SECOND PRESIDENT OF THE UNITED STATES: WITH A LIFE OF THE AUTHOR, NOTES AND ILLUSTRATIONS (Charles Francis Adams, ed. 1856)

Background: Under colonial Massachusetts Royal Charter, the Governors Council would assist the Governor and the Lieutenant Governor and would provide advice and consent in the appointments process. The Massachusetts state constitution of 1780 vested the Executive Council with similar influence in the appointments process. In his THOUGHTS ON GOVERNMENT, John Adams highlighted the importance of the Council in its role as a counterweight to the Governor. Quote: [The Council] was a mediator between the two extreme branches of the legislature, that which represents the people and that which is vested with the executive power. ~~~ 2. New York Citation: THE FEDERALIST NO. 77 (Alexander Hamilton), available at http://consource.org/document/the-federalist-no-77-1788-4-2/.

Background: In this Federalist paper, Alexander Hamilton defends vesting the appointments power jointly in the President and the Senate by highlighting the inefficiencies of New Yorks appointments process. To Hamilton, the federal Constitutions two-step appointments procedure, in which the President took a leading role, ensured that no one branch exerted too much ! 25!

! influence over the appointments process. Hamilton viewed this as preferable to New Yorks closed-door appointments, which precluded any sort of assurance that private interests and/or the Governors influence did not dictate the outcome of the appointment. Quote: The council of appointment consists of from three to five persons, of whom the governor is always one. This small body, shut up in a private apartment, impenetrable to the public eye, proceeds to the execution of the trust committed to them. It is known that the governor claims the right of nomination, upon the strength of some ambiguous expressions in the constitution; but it is not known to what extent, or in what manner he exercises it; nor upon what occasions he is contradicted or opposed. The censure of a bad appointment, on account of the uncertainty of its author, and for want of a determinate object, has neither pregnancy nor duration. And while an unbounded field for cabal and intrigue lies open, all idea of responsibility is lost. The most that the public can know is, that the governor claims the right of nomination: That two out of the considerable number of four men can too often be managed without much difficulty And that, from whatever cause it may proceed, a great number of very improper appointments are from time to time made. Whether a governor of this state avails himself of the ascendant he must necessarily have, in this delicate and important part of the administration, to prefer to offices men who are best qualified for them: Or whether he prostitutes that advantage to the advancement of persons, whose chief merit is their implicit devotion to his will, and to the support of a despicable and dangerous system of personal influence, are questions which unfortunately for the community can only be the subjects of speculation and conjecture. Every mere council of appointment, however constituted, will be a conclave, in which cabal and intrigue will have their full scope. ~~~ c. Constitutional Convention Debates Citation: James Madisons Notes on the Constitutional Convention (July 18, 1787), available at http://consource.org/document/james-madisons-notes-of-theconstitutional-convention-1787-7-18/

Background: Alexander Hamilton initially suggested that the Senate have a role in the appointments process as a compromise between vesting the appointments power exclusively in the executive and involving the entire legislature in the process. While the President would have the sole power to appoint the heads or chief officers of Finance, War, and Foreign Affairs, the Senate would be responsible for approving or rejecting all other officers. Though not immediately popular, Hamiltons plan was ultimately adopted after Nathaniel Gorham reintroduced the notion of advice and consent as a way for the executive to appoint judges in the mode prescribed by the constitution of Massachusetts. To Hamilton, vesting the appointments power in any single branch of government would render the appointments process susceptible to ! 26!

! jobbing, a term then used to reference acting for personal profit. See Oxford English Dictionary (Online v. 2012), available at http://www.oed.com/view/Entry/101409?rskey=YEKIBh&result=2&isAd vanced=false#eid (subscription required). Quote: Mr. Ghorum moved that the Judges be [nominated and appointed] by the Executive, by & with the advice & consent of the 2d branch (&every such nomination shall be made at least days prior to such appointment]. This mode he said has been ratified by the experience of 140 years in Massachusetts. If the appt. should be left to either branch of the Legislature, it will be a mere piece of jobbing. ~~~

d. State Ratification Debates 1. Pennsylvania Citation: The Dissent of the Minority of the Convention, The Pennsylvania Packet, December 18, 1787, available at http://rotunda.upress.virginia.edu/founders/RNCN-02-02-02-0003-0003 (subscription required).

Background: The Dissent of the Minority was signed by members of the Pennsylvania ratifying convention who voted against the ratification of the Constitution. In this passage, the dissenters raise concerns regarding the role of the Senate in the appointments process. Quote: And this great power may be exercised by the president and 10 senators (being two-thirds of 14 which is a quorum of that body). What an inducement would this offer to the ministers of foreign powers to compass by bribery such concessions as could not otherwise be obtained. It is the unvaried usage of all free states, whenever treaties interfere with the positive laws of the land, to make the intervention of the legislature necessary to give them operation. This became necessary, and was afforded by the parliament of Great Britain in consequence of the late commercial treaty between that kingdom and France. As the senate judges on impeachments, who is to try the members of the senate for the abuse of this power! And none of the great appointments of office can be made without the consent of the senate. Such various, extensive, and important powers combined in one body of men are inconsistent with all freedom; the celebrated Montesquieu tells us, that when the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty, because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. ~~~

27!

! e. Anti-Federalist & Federalist Papers Citation: THE FEDERALIST NO. 66 (Alexander Hamilton), available at http://consource.org/document/the-federalist-no-66-1788-3-8/.

Background: Here, Hamilton defends the Senates participation in the appointments process. Because the Senate merely confirms the presidents nomination, the Senate has little connection to the officeholder. Therefore, should any impeachment proceedings against a particular appointee arise, the senators would have little connection to the officeholder and would not be biased in evaluating his conduct. Quote: It is imagined that they would be too indulgent judges of the conduct of men, in whose official creation they had participatedIt will be the office of the president to nominate, and with the advice and consent of the senate to appoint. There will, of course be no exertion of choice on the part of the senate. They may defeat one choice of the executive, and oblige him to make another; but they cannot themselves choose-they can only ratify or reject the choice, of the president. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed; because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. Thus it could hardly happen that the majority of the senate would feel any other complacency towards the object of an appointment, than such, as the appearances of merit, might inspire, and the proofs of the want of it, destroy. ~~~ Citation: THE FEDERALIST NO. 76 (Alexander Hamilton), available at http://consource.org/document/the-federalist-no-76-1788-4-1/.

Background: In this essay, Alexander Hamilton stresses the importance of the presidents leadership role in the appointments process. To Hamilton, the power to nominate was effectively the power to appoint, and a limited legislative role controlled the influence of private interests. Quote: But it is easy to shew [sic] that every advantage to be expected from such an arrangement would in substance be derived from the power of nomination, which is proposed to be conferred upon him; while several disadvantages which might attend the absolute power of appointment in the hands of that officer, would be avoided. In the act of nomination his judgment alone would be exercised; and as it would be his sole duty to point out the man, who with the approbation of the Senate should fill an office, his responsibility would be as complete as if he were to make the final appointment. There can in this view be no difference between nominating and appointing. The same motives which would influence a proper discharge of his duty in one case would exist in the other. And as no man could be 28!

! appointed, but upon his previous nomination, every man who might be appointed would be in fact his choice. ~~~ Citation: THE FEDERALIST NO. 76 (Alexander Hamilton), available at http://consource.org/document/the-federalist-no-76-1788-4-1/.

Background: Here, Hamilton extols the virtues of a system of cooperation between the president and the senate inherent in the Appointments Clause. Though Hamilton highlights that the senates advisory role would check the presidents power, he also believed that the senates review would be more of a passive review than an active force in the appointments process. Quote: The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted by the preference they might feel to another to reject the one proposed; because they could not assure themselves that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain that a future nomination would present a candidate in any degree more acceptable to them: And as their dissent might cast a kind of stigma upon the individual rejected; and might have the appearance of a reflection upon the judgment of the chief magistrate; it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal. To what purpose then require the co-operation of the Senate? I answer that the necessity of their concurrence would have a powerful, though in general a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to preventing the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. And, in addition to this, it would be an efficacious source of stability in the administration. It will readily be comprehended, that a man, who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body; and that body an entire branch of the Legislature. The possibility of rejection would be a strong motive to care in proposing.-The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body, whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. ~~~ Citation: THE FEDERALIST NO. 77 (Alexander Hamilton), available at http://consource.org/document/the-federalist-no-77-1788-4-2/.

29!

! Background: Here again, Hamilton strongly defends vesting the appointments power jointly in the president and the senate. To Hamilton, each branchs negative, or power to restrain the other, ensures that neither exerts too much influence over the appointments process while still maintaining the separation of powers between the executive and the legislature. Just as it is unlikely for the senate to influence whom the president nominates, the president will rarely have enough personal interest in the appointment to exert his influence over the senate. Quote: To this union of the senate with the president, in the article of appointments, it has in some cases been suggested, that it would serve to give the president an undue influence over the senate; and in others, that it would have an opposite tendency; a strong proof that neither suggestion is true. To state the first in its proper form is to refute it. It amounts to this-The president would have an improper influence over the senate; because the senate would have the power of restraining him. This is an absurdity in terms. It cannot admit of a doubt that the intire [sic] power of appointment would enable him much more effectually to establish a dangerous empire over that body, than a mere power of nomination subject to their controul [sic]. Let us take a view of the converse of the proposition-"The senate would influence the executive"-As I have had occasion to remark in several other instances, the indistinctness of the objection forbids a precise answer. In what manner is this influence to be exerted? In relation to what objects? The power of influencing a person, in the sense in which it is here used, must imply a power of conferring benefit upon him. How could the senate confer a benefit upon the president by the manner of employing their right of negative upon his nominations? If it be said they might sometimes gratify him by an acquiescence in a favorite choice, when public motives might dictate a different conduct; I answer that the instances in which the president could be personally interested in the result, would be too few to admit of his being materially affected by the compliances of the senate. ~~~ Citation: THE FEDERALIST NO. 77 (Alexander Hamilton), available at http://consource.org/document/the-federalist-no-77-1788-4-2/.

Background: In other Federalist papers, Hamilton advocated for the inclusion of the Senate in the appointments process. However, Hamilton strongly condemned the inclusion of the House of Representatives in the process, believing it would create inefficiencies and instability within the government. Quote: A body so fluctuating, and at the same time so numerous, can never be deemed proper for the exercise of that power. Its unfitness will appear manifest to all, when it is recollected that in half a century it may consist of three or four hundred persons. All the advantages of the stability, both of the executive and of the senate, would be defeated by this union; and infinite delays and embarrassments would be occasioned. The example of most of the states in their local constitutions, encourages us to reprobate the idea. 30!

! ~~~ Citation: A Farmer, of New-Jersey, Observations on Government, November 3, 1787, available at http://rotunda.upress.virginia.edu/founders/RNCN-02-19-020002-0066

Background: Written by John Stevens, Jr., this essay argues that it is improper for the Senate to vote on executive appointments, because they are to sit in judgment in cases of impeachment of the President and his inferior officers. Quote: The President should have the chusing [sic] of his own advisers, as he will of consequence be the more responsible.But at any rate, the Senate are very improper for this office, as they are to sit as judges in case of an impeachment of the President. ~~~ f. Early American Treatises and Pamphlets Citation: James Madison, Letters of Helvidius, No. II, available at http://presspubs.uchicago.edu/founders/documents/a2_2_2-3s15.html.

Background: The Helvidius-Pacificus debate occurred between Alexander Hamilton and James Madison and concerned the structure of the United States government. Writing following Washingtons 1793 Proclamation of Neutrality to the war between Britain and France, Helvidius (Madison) contested that the President did not have the unilateral authority to issue this proclamation. Helvidius letters were a direct response to Alexander Hamilton, writing under the name Pacificus, defending Washingtons Proclamation. This debate highlighted the ongoing tension over the structure of the government. Here, Madison explains the limitations on jointly vesting power in different branches of government. This, again, sheds light on Hamiltons views on the presidents leadership role in the appointments process. By participating in the process, the Senate is performing an executive act and can therefore never act without the President first initiating the procedure. The Senate would have no role in the appointments process without the Presidents initial nomination. Quote: Legislative power may be concurrently vested in different legislative bodies. Executive powers may be concurrently vested in different executive magistrates. In legislative acts the executive may have a participation, as in the qualified negative on the laws. In executive acts, the legislature, or at least a branch of it, may participate, as in the appointment to offices. Arrangements of this sort are familiar in theory, as well as in practice. But an independent exercise of an executive act by the legislature alone, or of a legislative act by the executive alone, one or other of which must happen in every case where the same act is exerciseable [sic] by each, and the latter of which would happen in the case urged by the writer, is contrary to one of the 31!

! first and best maxims of a well-organized government, and ought never to be founded in a forced construction, much less in opposition to a fair one. Instances, it is true, may be discovered among ourselves, where this maxim has not been faithfully pursued; but being generally acknowledged to be errors, they confirm, rather than impeach the truth and value of the maxim. It may happen also, that different independent departments, the legislative and executive, for example, may, in the exercise of their functions, interpret the constitution differently, and thence lay claim to the same power. This difference of opinion is an inconvenience not entirely to be avoided. It results from what may be called, if it be thought fit, a concurrent right to expound the constitution. But this species of concurrence is obviously and radically different from that in question. The former supposes the constitution to have given the power to one department only; and the doubt to be, to which it has been given. The latter supposes it to belong to both; and that it may be exercised by either or both, according to the course of exigencies. A concurrent authority in two independent departments, to perform the same function with respect to the same thing, would be as awkward in practice, as it is unnatural in theory. ~~~ Citation: 2 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1530-31, available at http://www.constitution.org/js/js_337.htm.

Background: Joseph Story highlights that the Framers included the Senate in the appointments process as a precautionary measure to ensure the president did not exert too much influence over the appointments process. Quote: 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 means of corrupt influence or individual profit; not for cringing favorites 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 or preventative as well as a remedy.

32!

! 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. ~~~ Citation: 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 750, available at http://www.constitution.org/js/js_310.htm.

Background: Here, Story explains that the Senates involvement in the appointments process does not prevent a conflict of interest should any potential impeachment proceedings arise. Story highlights that the Senates advice and consent role in the appointments process is secondary to the presidents initial nomination; because the Senate plays so minor a role in the appointment, it is unlikely that Senators will feel any strong attachment to the appointee. Story also highlights that Art. 1, 3, cl. 2, providing for staggered senatorial elections, made it unlikely that the same group of senators initially involved in the appointment would still be in Congress when any impeachment proceedings arose. Quote: The next objection is, that the power is not efficient or safe in connexion [sic] with the agency of the senate in appointments. The argument is, that senators, who have concurred in an appointment, will be too indulgent judges of the conduct of the men, in whose efficient creation they have participated. The same objection lies with equal force against all governments, which entrust the power of appointment to any persons, who have a right to remove them at pleasure. It might in such cases be urged, that the favouritism [sic] of the appointor [sic] would always screen the misbehaviour [sic] of the appointees. Yet no one doubts the fitness of entrusting such a power; and confidence is reposed, and properly reposed, in the character and responsibility of those, who make the appointment. The objection is greatly diminished in its force by the consideration, that the senate has but a slight participation in the appointments to office. The president is to nominate and appoint; and the senate are called upon merely to confirm, or reject the nomination. They have no right of choice; and therefore must feel less solicitude, as to the individual, who is appointed. But, in fact, the objection is itself not well founded; for it will rarely occur, that the persons, who have concurred in the appointment, will be members of the senate at the time of the trial. As one third is, or may be, changed every two years, the case is highly improbable; and still more rarely can the fact of the appointment operate upon the minds of any considerable number of the senators. What possible operation could it have upon the judgment of a man of reasonable intelligence and integrity, that he had assented to the appointment of any individual, of whom he ordinarily could have little, or no personal knowledge, and in whose appointment he had concurred upon the judgment and recommendation of others? Such an influence is too remote to be of much weight in human affairs; and if it exists at all, it is too common to form a just exception to the competency of any forum. 33!

! ~~~

g. Miscellaneous Citation: Letter from John Adams to Roger Sherman (July 20, 1789), in 6 THE WORKS OF JOHN ADAMS 432-436 (Charles Francis Adams ed., 1850-56), available at http://press-pubs.uchicago.edu/founders/documents/a2_2_2-3s45.html.

Background: In a July 1789 letter to Roger Sherman, Vice President John Adams expressed his concerns over the Senates involvement in the appointment process. To Sherman, the Senates involvement in the process provided a useful check on the executives power. Adams disagreed. To Adams, the senates advice and consent function diminished the presidents sense of responsibility for his appointments, opened the appointments process to private influence, distracted the people from ensuring the executive does not overstep his delegated power, and wasted the Senates time. Quote: It will weaken the hands of the executive, by lessening the obligation, gratitude, and attachment of the candidate to the president, by dividing his attachment between the executive and legislative, which are natural enemies. Officers of government, instead of having a single eye and undivided attachment to the executive branch, as they ought to have, consistent with law and the constitution, will be constantly tempted to be factious with their factious patrons in the senate. The president's own officers, in a thousand instances, will oppose his just and constitutional exertions, and screen themselves under the wings of their patrons and party in the legislature. Nor will it secure the confidence of the people. The people will have more confidence in the executive, in executive matters, than in the senate. The people will be constantly jealous of factious schemes in the senators to unduly influence the executive, to serve each other's private views. The people will also be jealous that the influence of the senate will be employed to conceal, connive at, and defend guilt in executive officers, instead of being a guard and watch upon them, and a terror to them. A council, selected by the president himself, at his pleasure, from among the senators, representatives, and nation at large, would be purely responsible. In that case, the senate would be a terror to privy counsellors [sic]; its honor would never be pledged to support any measure or instrument of the executive beyond justice, law, and the constitution. Nor would a privy council be more expensive. The whole senate must now deliberate on every appointment, and if they ever find time for it, you will find that a great deal of time will be required and consumed in this service. Then, the president might have a constant executive council; now, he has none. ~~~

34!

! The Recess Appointments Clause (Art. 2, 2, cl. 3) Citation: Quote: U.S. CONST. art. II, 2, cl. 3, available at http://consource.org/document/united-states-constitution/. The President shall have Power 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.

a. Intellectual Influences Citation: 1 ST. GEORGE TUCKER, BLACKSTONES COMMENTARIES: WITH NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS OF THE FEDERAL GOVERNMENT OF THE UNITED STATES AND OF THE COMMONWEALTH OF VIRGINIA (1803).

Background: St. George Tucker, an American legal scholar, is best known for his multivolume annotated edition of Blackstones Commentaries, which detailed the incorporation of British common law into the early American legal system. Here, St. George Tucker contrasts offices that became vacant during the recess of the senate with offices kept vacant because of disagreements between the president and the senate. To St. George Tucker, the president would be able to utilize his Recess Appointments power with the former, but the latter would require the office to be kept vacant. Quote: But if it should have happened that the office became vacant during the recess of the senate, and the vacancy were filled by a commission which should expire, not at the meeting of the senate, but at the end of their session, then, in case such a disagreement between the president and the senate, if the president should persist in his opinion, and make no other nomination, the person appointed by him during the recess of the senate would continue to hold his commission, until the end of their session: so that the vacancy would happen a second time during the recess of the senate, and the president consequently, would have the sole right of appointing a second time; and the person whom the senate have rejected, may be instantly replaced by a new commission. And thus it is evidently in the power of the president to continue any person in office, whom he shall once have appointed in the recess of the senate, as long as he may think proper. A circumstance which renders the power of nomination, and of filling up vacancies during the recess of the senate, too great to require any further extension. ~~~ b. British Parliamentary Practice Citation: THOMAS JEFFERSON, A MANUAL OF PARLIAMENTARY PRACTICE LI (1801).

Background: In his MANUAL OF PARLIAMENTARY PRACTICE, Thomas Jefferson explains that in parliament, recess by adjournment occurred during an ongoing ! 35!

! session, as opposed to between separate sessions. Here, Jefferson positioned this parliamentary explanation immediately preceding his discussion of congressional separation by adjournment. Quote: Parliament have three modes of separation, to wit, by adjournment, by prorogation, or dissolution by the King, or by the efflux of the term for which they were elected, Prorogation or dissolution constitutes there what is called a session; provided some act has passed. In this case, all matters depending before them are discontinued, and at their next meeting are to be taken up de novo, if taken up at all. Adjournment, which is by themselves, is no more than a continuance at the session from one day to another, or for a fortnight, a month. All matters depending remain in status quo, and when they meet again, be the term ever so distant, are resumed without any fresh commencement, at the point at which they were left. Their whole session is considered in law but as one day, and has relation to the first day thereof. Committees may be appointed to sit during a recess by adjournment, but not by prorogation. Neither House can continue any portion of itself in any Parliamentary function, beyond the end of the session, without the consent of the other two branches. When done, it is by a bill constituting them commissioners for a particular purpose. ~~~ c. State Constitutions Pre-Dating the Federal Constitution 1. Delaware Citation: DEL. CONST. of 1776, art. 21, available at http://consource.org/document/constitution-of-delaware-1776-9-21/.

Background: Delawares executive branch consisted of a president and a Privy Council, both selected by the states bicameral legislature, the General Assembly. The president always needed the Privy Councils advice and consent to act. Article 21 provides for the president and the Privy Council, in the absence of the General Assembly, to appoint justices of the supreme court for the state and justices for the courts of common pleas. Quote: ART. 21. In case of vacancy of the offices above directed to be filled by the president and general assembly, the president and privy council may appoint others in their stead until there shall be a new election. ~~~ 2. Maryland Citation: MD. CONST. of 1776, art. XIII, available at http://consource.org/document/constitution-of-maryland-1776-11-11/.

Background: The Maryland Constitution of 1776 provided for a bicameral legislature, the General Assembly, which had power to choose both the Governor and the

36!

! Council to the Governor. The legislature held most of the state governments power, but the Governor, with the advice and consent of his Council, could appoint certain state officials. Article XIII describes the Governors power to fill vacancies during the recess of the General Assembly. Quote: XIII. That the Treasurers (one for the western, and another for the eastern shore) and the Commissioners of the Loan Office, may be appointed by the House of Delegates, during their pleasure; and in case of refusal, death, resignation, disqualification, or removal out of the State, of any of the said Commissioners or Treasurers, in the recess of the General Assembly, the governor, with the advice of the Council, may appoint and commission a fit and proper person to such vacant office, to hold the same until the meeting of the next General Assembly. ~~~ 3. North Carolina Citation: N.C. CONST. of 1776, art. XX, available at http://consource.org/document/constitution-of-north-carolina-1776-1218/.

Background: The North Carolina Constitution of 1776 vested most of the governments power in the states popularly elected bicameral legislature, the General Assembly, which could both elect and remove the governor. The governor could rarely act without the consent of his advisory Council of State, also selected by the General Assembly. Article XX describes the governors power to make temporary appointments to vacancies that occurred during the recess of the General Assembly. Quote: XX. That in every case where any officer, the right of whose appointment is by this Constitution vested in the General Assembly, shall, during their recess, die, or his office by other means become vacant, the Governor shall have power, with the advice of the Council of State, to fill up such vacancy, by granting a temporary commission, which shall expire at the end of the next session of the General Assembly ~~~ 4. Pennsylvania Citation: PA. CONST. of 1776, available at http://consource.org/document/constitution-of-pennsylvania-1776-9-28/.

Background: Pennsylvanias 1776 Constitution provided for a twelve-member executive council, which would then elect a president and a vice president. Despite the leadership roles existing within the council, the president and vice president were powerless to act without the consent of a majority of the council. Section 20 of the Constitution permits the states executive to issue a trade

37!

! embargo in the recess of the House, an authority that was ultimately exercised during an intra-session legislative recess. Quote: 20: [The president, and in his absence the vice-president, with the council of censors] may also lay embargoes, or prohibit the exportation of any commodity, for any time, not exceeding thirty days, in the recess of the house only: They may grant such licences [sic], as shall be directed by law, and shall have power to call together the general assembly when necessary, before the day to which they shall stand adjourned. ~~~ 5. South Carolina Citation: S.C. CONST. of 1778, art. XXXV, available at http://avalon.law.yale.edu/18th_century/sc02.asp.

Background: South Carolines 1778 constitution provides for the governor to temporarily assume certain duties in the recess of the General Assembly. Article XXXV highlights the breadth of the executive action permissible in the recess of the states legislature. Quote: XXXV. That the governor and commander-in-chief for the time being, by and with the advice and consent of the privy council, may lay embargoes or prohibit the exportation of any commodity, for any time not exceeding thirty days, in the recess of the general assembly. ~~~ 6. Vermont Citation: VT. CONST. of 1777, ch. II, XVIII available at http://consource.org/document/constitution-of-vermont-1777-7-8/.

Background: Promulgated in 1777, the Constitution of Vermont both proclaimed the states independence from Great Britain and delineated the governments duties and powers. Ch. II, XVIII authorizes the states governor to issue a trade embargo in the recess of the legislature. Quote: Ch. II, XVIII: The Governor, and in his absence, the Lieutenant or Deputy Governor, with the Council-seven of whom shall be a quorum-shall have power to appoint and commissionate [sic] all officers, (except those who are appointed by the General Assembly,) agreeable to this frame of government, and the laws that may be made hereafter; and shall supply every vacancy in any office, occasioned by death, resignation, removal or disqualification, until the office can be filled, in the time and manner directed by law or this constitution. They are to correspond with other States, and transact business with officers of government, civil and military; and to prepare such business as may appear to them necessary to lay before the General Assembly. They shall sit as judges to hear and determine on impeachments, taking to their

38!

! assistance, for advice only, the justices of the supreme court; and shall have power to grant pardons, and remit fines, in all cases whatsoever, except cases of impeachment, and in cases of treason and murder-shall have power to grant reprieves, but not to pardon, until the end of the next session of the Assembly: but there shall be no remission or mitigation of punishment, on impeachments, except by act of legislation. They are also, to take care that the laws be faithfully executed. They are to expedite the execution of such measures as may be resolved upon by General Assembly; and they may draw upon the Treasurer for such sums as may be appropriated by the House: they may also lay embargoes, or prohibit the exportation of any commodity for any time, not exceeding thirty days, in the recess of the House only: they may grant such licenses as shall be directed by law, and shall have power to call together the General Assembly, when necessary, before the day to which they shall stand adjourned. The Governor shall be commander-in-chief of the forces of the State; but shall not command in person, except advised thereto by the Council, and then, only as long as they shall approve thereof. The Governor and Council shall have a Secretary, and keep fair books of their proceedings, wherein any Councillor [sic] may enter his dissent, with his reasons to support it. ~~~ d. State Practice Pre-Dating the Federal Constitution 1. Massachusetts Citation: ALDEN BRADFORD, SPEECHES OF THE GOVERNORS OF MASSACHUSETTS FROM 1765 TO 1775; AND THE ANSWERS OF THE HOUSE OF REPRESENTATIVES TO THE SAME, WITH THEIR RESOLUTIONS AND ADDRESSES FOR THAT PERIOD. AND OTHER PUBLIC PAPERS, RELATING TO THE DISPUTE BETWEEN THE COUNTRY AND GREAT BRITAIN 53-54 (1818).

Background: Here, SPEECHES highlights the Governor of Massachusetts practice of conducting business and carrying out policies when the Council or Court was not sitting. As previously discussed, in late seventeenth-century Massachusetts, the government consisted of a Governor and a bicameral legislature, with one chamber, the House of Representatives, elected based upon property qualifications and a twenty-eight member Provincial Council, elected by the House of Representatives, subject to the Royal Governors veto. Quote: From the very nature of government, which is formed for the good of the people, it seems necessary that the Governor and Council, in cases of emergency, should have a power (when the General Court cannot be sitting) to provide for the good of the people. ~~~ Citation: From the Council to the House of Representatives (November 7, 1765) reprinted in ALDEN BRADFORD, SPEECHES OF THE GOVERNORS OF 39!

! MASSACHUSETTS FROM 1765 TO 1775; AND THE ANSWERS OF THE HOUSE OF REPRESENTATIVES TO THE SAME, WITH THEIR RESOLUTIONS AND ADDRESSES FOR THAT PERIOD. AND OTHER PUBLIC PAPERS, RELATING TO THE DISPUTE BETWEEN THE COUNTRY AND GREAT BRITAIN 53-54 (1818). Background: The Massachusetts Court launched an attack on the Governors actions during the Courts recess. The conflict between the two branches mainly focused on the Governors support of Parliaments Stamp Act, a tax levied on the colonists despite their lack of representation in Parliament. Contrary to the Governors pro-Parliament stance, the General Court sided with the colonists resistance to the tax. Acting while the General Court was in recess, the Governor and the Executive Council withdrew money from the states treasury and used it to counter the colonists resistance. Here, the Court responds to the Councils earlier described defense of the Governors actions during the Courts recess. Quote: It seems to be concededthat if the General Assembly had been sitting, the Governor and Council could not have rightly taken the measures complained ofThere can be necessity for so strange an exertion of power and prerogative in the Governor and Council in an emergency that may happen in the recess of the General Court. ~~~ Citation: Letter from Samuel Adams to Arthur Lee (Oct. 31, 1771), in 2 THE WRITINGS OF SAMUEL ADAMS, 1770-1773 (Harry Alonzo Cushing ed., 1906).

Background: In a letter to Arthur Lee, Samuel Adams details the Governor of Massachusetts practice of postponing certain executive business until sessions of the General Court had concluded and the disagreeing Councilors had left the city. At this point, the Governor would enact controversial measures and make appointments without having to worry about opposition from the Council. Adams went on to detail recent appointments and their personal connections to the governor. Quote: With regard to the Council, it is hardly possible for any one at a distance to ascertain their political Sentiments from what they see of their determinations publishd [sic] here in general, for it has been the practice of the Governor to summon a general Council at the Time when the Assembly is sitting & of Course the whole Number of Councillors [sic] is presentbut in their Capacity of Advisers to the Governor they are adjournd [sic] from week to week during the Session of the Assembly & till it is over when the Country Gentlemen Members of Council return home. Thus the general Council being kept alive by Adjournments, the principal & most important part of the Business of their executive department is done by seven or eight who live in & about the Town, & if the Governor can manage a Majority of s small a Number, Matters will be conducted according to his mind. I believe I may safely affirm that by far the greater Number of civil officers have been appointed at these adjournments; so that it is much the same as if they were 40!

! appointed solely by our ostensible Governor or rather by his Master, the Minister for the time being. e. Early Understandings of the Term Recess Citation: 26 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, at 287-88, 29596 (Gaillard Hunt ed., 1928).

Background: In the Continental Congress, the Framers appointed a committee that exercised the power of appointment during a five-month recess between sessions in 1784. Though there is a record of this committee sitting to make appointments during the Congress lengthier intersession recesses, there is no such record for Congress shorter intrasession adjournments. ~~~ Citation: Letter from George Washington to John Jay (Sept. 2, 1787), reprinted in 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787 76 (Max Farrand ed., rev. ed. 1937), available at http://www.consource.org/document/georgewashington-to-john-jay-1787-9-2/.

Background: The Constitutional Convention of 1787 adjourned from July 26 until August 6. As detailed in his letter to John Jay, George Washington considered this period the recess. Quote: I regret not having had it in my power to visit New York during the adjournment of the Convention, last month.not foreseeing with any precision the period at which it was likely to take place or length of it, I had put my carriage in the hands of a workman to be repaired and had not the means of moving during the recess but with or the curtisy [sic] of, others. ~~~ Citation: Speech of Martin Luther to the Legislature of the State of Maryland (1787) reprinted in 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787 191 (Max Farrand ed., rev. ed. 1937), available at http://teachingamericanhistory.org/library/document/luther-martin-speechto-maryland-state-house-of-delegates/.

Background: During the Constitutional Conventions adjournment from July 26 until August 6, Martin Luther returned to Maryland to speak to his states legislature. In discussing the Convention, Luther referred to the current break as the recess. Quote: Before the adjournment, I moved for liberty to be given to the different members to take correct copies of the propositions, to which the convention had then agreed, in order that during the recess of the convention, we might have an opportunity of considering them, and, if it should be thought that nay alterations or amendments were necessary, that we might be prepared against the convention met, to bring them forward for discussion.

41!

! ~~~ Citation: An act for allowing compensation to the members of the Senate and House of Representatives of the United States, and to the Officers of both Houses, 1st Cong., 1 Stat. 70, 71 (1789).

Background: In 1789, the First Congress passed a compensation bill, providing for the engrossing clerks salary. This act gave Congress the authority to provide for the clerks salary both during the legislatures session and during its recess. Quote: Two dollars per day during the session, with the like compensation to such clerk while he shall be necessarily employed in the recess. ~~~ Citation: Thomas Jefferson, Letter to George Washington, October 3, 1787, in 27 THE PAPERS OF THOMAS JEFFERSON 191-92 (John Catanzariti ed., 1997), available at http://founders.archives.gov/documents/Jefferson/01-27-02-0194.

Background: George Washington used his recess appointments power to make Robert Scot the Engraver of the Mint, after the death of Joseph Wright, the prior engraver. Though Wright died during a Senate session, the commission was not made until November 23, 1793, during the recess of the Senate. The Senate ultimately confirmed the appointment on 30 Dec. 1793. Here, in a letter to George Washington, Thomas Jefferson discusses Scots appointment. Quote: The death of Wright will require a new nomination of an engraver. If it be left to Mr. Rittenhouse, I think he would prefer Scott. ~~~

f. Constitutional Convention Debates Citation: James Madisons Notes on the Constitutional Convention (September 7, 1787), available at http://consource.org/document/james-madisons-notes-ofthe-constitutional-convention-1787-9-7/.

Background: Proposed by Richard Spaight of North Carolina on one of the final days of the Convention, after the majority of the Constitution had already been drafted, the Recess Appointments clause was approved without recorded dissent or debate. The delegates affirmed the Clause unanimously. Quote: On Motion of Mr. Spaightthat the President shall have the power to fill up all vacancies that may happen during the recess of the Senate by granting Commissions which shall expire at the end of the next Session of the Senate. It was agreed to nem: con:. ~~~ 42!

g. State Ratification Debates 1. North Carolina Citation: Speech of Archibald Maclaine, reprinted in 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA IN 1787, 135-36 (Jonathan Elliot ed., 2d ed. 1836).

Background: At the North Carolina ratifying convention, Archibald Maclaine expressed his support for the Recess Appointments Clause. Recognizing that Congress would not always be in session, Maclaine believed that vesting the president with the recess appointments power was a crucial step in enabling the president to execute his duties and minimize governmental inconveniences. Quote: Congress are not to be sitting at all times; they will only sit from time to time, as the public business may render it necessary. Therefore the executive ought to make temporary appointments, as well as receive ambassadors and other public ministers. This power can be vested nowhere but in the executive, because he is perpetually acting for the public; for, though the Senate is to advise him in the appointment of officers, &c., yet, during the recess, the President must do his business, or else it will be neglected; and such neglect may occasion public inconveniences. ~~~ 2. Pennsylvania Citation: 2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA IN 1787, 513 (Jonathan Elliot ed., 1836).

Background: At the Pennsylvania ratification debate, James Wilson expressed his belief that the Senate would not often sit, because the legislature only had very few, carefully delineated powers, including the treaty-making power, trying impeachments, and appointing officers, which the Recess Appointments Clause enabled to be done in the legislatures absence. Quote: There is only left the power of concurring in the appointment of officers; but care is taken, in this Constitution, that this branch of business may be done without [the Senates] presencethe president is authorised [sic] t 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. So that on the whole the Senate need not sit longer than the house of representatives, at the public expense; and no doubt if apprehensions are entertained of the Senate, the house of representatives will not provide pay for them, one day longer than is necessary. But what (it will be asked) is this great power of the president? He can fill the offices only by temporary appointments. True; but 43!

! every person knows the advantage of being once introduced into an office; it is often of more importance than the highest recommendation. ~~~ Citation: 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA IN 1787 534 (Jonathan Elliot ed., 2d ed. 1836).

Background: Similar to Wilson, Thomas MKean, a Philadelphia delegate, expressed his belief that the Senate would not be perpetually in session, especially since the Constitution enabled the President to act in its absence. Quote: Nor need the Senate be under any necessity of sitting constantly, as has been alleged; for there is an express provision made to enable the President to fill up all vacancies that may happen during the recess ~~~ 3. Virginia Citation: 3 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA IN 1787 409-10 (Jonathan Elliot ed., 2d ed. 1836).

Background: In responding to concerns regarding the Adjournment Clause, James Madison stressed that the government would not be at a standstill should the houses of congress disagree over whether to convene. Even if Congress were not in session, Madison explained, the President would still be able to fill its vacancies. Quote: There will not be occasion for the continual residence of the senators at the seat of governmentIt is observed that the President, when vacancies happen during the recess of the Senate, may fill them till it meets. ~~~

h. Anti-Federalist & Federalist Papers Citation: THE FEDERALIST NO. 67 (Alexander Hamilton), available at http://consource.org/document/the-federalist-no-67-1788-3-11/.

Background: In this paper, Alexander Hamilton describes the Executives powers and its limitations. Responding to concerns regarding the presidents appointments power, Hamilton underscored that the unilateral exercise of executive power was limited to instances where the Senate was in recess, the appointments

44!

! were only temporary, and the power actually provided for a more efficient government. Quote: The Recess Appointments Clause was meant to ensure that vacant offices may be filled, albeit temporarily, when the Senate is unavailable to offer its advice and consent to appointments to federal office, while freeing the Senate from the obligations of being continually in session for the appointment of officers. ~~~ Citation: THE FEDERALIST NO. 67 (Alexander Hamilton), available at http://consource.org/document/the-federalist-no-67-1788-3-11/.

Background: Here, Hamilton underscores his belief that the Recess Appointments Clause was not the default appointing mechanism, and instead would act as a supplement to the preceding Appointments Clause. Quote: The last of these two clauses, it is equally clear, cannot be understood to comprehend the power of filling vacancies in the Senate, for the following reasons-First. The relation in which that clause stands to the other, which declares the general mode of appointing officers of the United States, denotes it to be nothing more than a supplement to the other; for the purpose of establishing an auxiliary method [of] appointment in cases, to which the general method was inadequate. The ordinary power of appointment is confided to the President and Senate jointly, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers; and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorise [sic] the President singly to make temporary appointments during the recess of the Senate, by granting commissions which should expire at the end of their next session. ~~~ Citation: Letter of Edmund Randolph to the Speaker of the Virginia House of Delegates (October 10, 1787), available at http://www.consource.org/document/edmund-randolph-to-the-speaker-ofthe-virginia-house-of-delegates-1787-10-10/.

Background: Though the Recess Appointments Clause was unanimously affirmed, Edmund Randolph initially declined to sign the Constitution for a number of reasons, including his concern with the presidents recess appointments power. Some of Randolphs qualms with the drafted Constitution, as expressed to the Speaker of the Virginia House of Delegates, are expressed below. Quote: But I am sanguine in hoping that in every other justly obnoxious cause, Virginia will be seconded by a majority of the States. I hope that she will be 45!

! seconded. 1. In causing all ambiguities of expression to be precisely explained. 2. In rendering the president ineligible after a given number of years. 3. In taking from him the power of nominating to the judiciary offices, or of filling up vacancies which may there happen during the recess of the senate, by granting commissions which shall expire at the end of their next sessions ~~~ Citation: Americanus VII, New York Daily Advertiser, January 21, 1788, available at http://rotunda.upress.virginia.edu/founders/RNCN-02-20-02-0002-0047 (subscription required).

Background: In response to Edmund Randolphs letter of objection to the Constitution printed on October 10, 1787, John Stevens, Jr. printed a response defending the Constitution. Quote: In taking from him, either the power of nominating to the judiciary offices, or of filling up vacancies, which therein may happen during the recess of the Senate, by granting commissions, which shall expire at the end of their next sessions. The design here, I suppose, is to prevent the President possessing too great an influence with respect to these appointments. But I am so unfortunate, that my sentiments, such as they are, with respect to this amendment, happen to be in direct opposition to those of Mr. Randolphs. Instead of controling [sic] the President still farther with regard to appointments, I am for leaving the appointment of all the principal officers under the Federal Government solely to the President, and the subordinate ones to the heads of departments. ~~~ Citation: Letters of Cato IV, reprinted in 2 THE COMPLETE ANTI-FEDERALIST 114 (Herbert J. Storing ed., 1981), available at http://consource.org/document/cato-iv-1789-7-3/.

Background: Here, Cato, presumably New York governor George Clinton, expresses his concern regarding the extent of the presidents power during legislative recesses. Quote: Though the president, during the sitting of the legislature, is assisted by the senate, yet he is without a constitutional council in their recess- he will therefore be unsupported by proper information and advice, and will generally be directed by minions and favorites, or a council of state will grow out of the principal officers of the great departments, the most dangerous council in a free country ~~~

46!

! i. Early American Treatises Citation: 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION 1551 (1833), available at http://www.constitution.org/js/js_337.htm.

Background: Though not in the original draft of the Constitution distributed on August 6, 1787, the Recess Appointments Clause was added by amendment without objection. Story explains the practical purpose of the Recess Appointments Clause providing the Executive with a temporary appointments power during Senate recesses furthered the Framers goal of an efficient and effective government. The deliberate limitations on the recess appointments power ensure that the executive does not usurp the senates role in the overall appointments process. Quote: 1551. There was but one of two course 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 recessthe 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. ~~~ Citation: 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION 1552 (1833), available at http://www.constitution.org/js/js_337.htm

Background: Here, Story describes the limitations of the presidents recess appointments power. Though the president can unilaterally appoint an officeholder in the recess of the Senate, the appointment expires at the end of the Senates next session. Should the president re-nominate the individual upon the Senates return to session, this is considered an entirely new appointment proceeding. Quote: 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. ~~~ Citation: 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION 1557 (1833), available at http://www.constitution.org/js/js_337.htm.

Background: Here, Story explains that the Framers intended for the Recess Appointments Clause to enable the government to continue to run efficiently even when the Senate was not in session. 47!

! Quote: 1557. There was but one of two course 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 recessthe 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. ~~~ Citation: 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION 1559, available at http://www.constitution.org/js/js_337.htm.

Background: Here, Story describes the parameters of the Recess Appointments Clause. While a president cannot use his recess appointments power to fill an office first created during a senate recess, the president can use his Recess Appointments power to fill a preexisting office that becomes vacant during the senates recess. Quote: 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. ~~~

j. Contemporaneous Dictionary Definitions 1. Happen Citation: 1 SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (1755), available at http://johnsonsdictionaryonline.com/?p=2035.

Background: Johnson published his A DICTIONARY OF THE ENGLISH LANGUAGE in 1755 as a solution to the poorly organized and ill-researched dictionaries of his time. Johnsons dictionary is commonly regarded as the preeminent English dictionary of its time, and was widely circulated and, accordingly, influential in lexicography throughout both Europe and America. Below, Johnson defines happen as it was used in 1755, the date of his dictionarys publishing. Quote: ! To fall out; to chance; to come to pass. 48!

! ~~~ Citation: NOAH WEBSTER, COMPENDIOUS DICTIONARY OF THE ENGLISH LANGUAGE (Websters First Dictionary) (1806).

Background: Websters COMPENDIOUS DICTIONARY OF THE ENGLISH LANGUAGE set out to standardize spelling and define words not traditionally included in the predominantly literary-focused dictionaries of his time. The COMPENDIOUS DICTIONARY included terms relating to the arts and sciences, and laid the groundwork of Websters later work AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE. Quote: To fall out, come to pass, chance. ~~~ 2. Recess Citation: Quote: 2 SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (1755). Remission or suspension of any procedure. ~~~ 3. Vacancy Citation: Quote: 4. The Citation: Quote: 2 SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE 481 (1755), available at http://bit.ly/16LimXc. An article noting a particular thing. ~~~ k. Congressional Records from the First Congresses Citation: 26 ANNALS OF CONG. 653 (1814) (Statement of Senator Gore), available at http://memory.loc.gov/cgibin/ampage?collId=llac&fileName=026/llac026.db&recNum=323. 2 SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (1755), available at http://johnsonsdictionaryonline.com/?p=3859. State of a post or employment when it is unsupplied.

Background: In the midst of the War of 1812, President Madison invoked the Recess Appointments Clause to appoint envoys to conduct negotiations on behalf of the United States. Speaking on the floor of the Senate in March 1814, Senator Gore of Massachusetts, an opponent of the War, expressed his belief

49!

! that Madison unconstitutionally used his recess appointments power for offices that had not been filled in the session preceding the Senates recess. Quote: It is the case of a vacancy in an office, a vacancy of certain and definitive character, viz: a vacancy that may happen during the recess of the Senate. If the vacancy happen at another time, it is not the case described by the Constitution; for that specifies the precise space of time wherein the vacancy must happen, and the times which define this period bring it emphatically within the ancient and well-established maxim: Expressio unius est exclusio alterius. The reason why the Constitution adopts this precise language and so strictly limits the case, is evident from the spirit and intention of that instrument, in the distribution of powers thereby created and delegated. The intent of the constitution was to vest the power of appointment in two departments of the Government. It would defeat its own purpose, then, were it to authorize one of these departments to exercise this power, except in the specified case in which the public interest may require immediate action, and the other could not.

l. Presidential Practice During the First Presidential Administrations 1. George Washingtons Administration (1789-1797) a. Interpretation of the Recess Appointments Clause Citation: Edmund Randolph, Opinion on Recess Appointments (July 7, 1792), in 24 THE PAPERS OF THOMAS JEFFERSON 165-67, available at http://rotunda.upress.virginia.edu/founders/TSJN-01-24-02-0176 (subscription required).

Background: Mid-way through Washingtons presidency, Edmund Randolph, the Attorney General, provided an opinion on the scope and meaning of the Recess Appointments Clause, arguing for a strict interpretation of the presidents authority under the clause. Randolph famously refused to sign the Constitution. During the ratification period, he included the presidents recess appointments power as one of his chief objections to the newly drafted Constitution. Quote: The answer of the attorney general of the United States to the question propounded to him by the Secretary of State on the following case. By the constitution, 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 therein otherwise provided, and which shall be established by law. He has also power to fill up vacancies, that may happen during the recess of the Senate, by granting commissions, which shall expire at the end of their next session.

50!

! The act establishing a mint directs, that for the well conducting of the business there shall be among other officers a chief Coiner. This act passed on the 2nd. of april [sic] 1792 and the Senate which concurred was sitting daily from thence until the 8th. of May following. But the chief Coiner was not nominated during their then sitting, tho a Director was appointed. The question is, whether the President can, constitutionally, during the now recess of the Senate grant to a chief Coiner a Commission which shall expire at the end of their next session? Is there a vacancy in the office of chief Coiner? An office is vacant when no officer is in the exercise of it. So that it is no less vacant when it has never been filled up, than it is upon the death or resignation of an Incumbent. The office of Chief Coiner is therefore vacant. But is it a vacancy which has happened during the recess of the Senate? It is now the same and no other vacancy, than that, which existed on the 2nd. of April 1792. It commenced therefore on that day or may be said to have happened on that day. The Spirit of the Constitution favors the participation of the Senate in all appointments. But as it may be necessary oftentimes to fill up vacancies, when it may be inconvenient to summon the senate a temporary commission may be granted by the President. This power then is to be considered as an exception to the general participation of the Senate. It ought too to be interpreted strictly. For altho I am well aware, that a chief Coiner for satisfactory reasons could not have been nominated during the last Session of the Senate; Yet every possible delicacy ought to be observed in transferring power from one order in government to another. It is true that the Senate may finally disapprove. But they are not left to a Judgment absolutely free, when they are to condemn the appointment of a Man actually in Office. In some instances indeed this must be the case; but it is in them a case of necessity only; as where the Officer has died, or resigned during the recess, or a person appointed during the Session shall not notify his refusal to accept, until the recess. It may well be asked in what the power of now for the first time granting a temporary commission for this new office is distinguishable in principle from granting a commission to one person in consequence of another who has been approved by the Senate, refusing to accept the first appointment to a new office? Is not the Vacancy under these circumstances one which has never been filled up and therefore in the same predicament, as the Office of Coiner? However a refined construction may make the cases approach each other, they are different in their relation to the constitution. In the one, the Senate have had a full opportunity to shew their sense. In the other not. In the one the vacancy was filled up, as far as the President and Senate could go;

51!

! and the Vacancy may be said to have happened during the Recess in consequence of the Refusal. In the other, not. An analogy has been suggested to me between a Minister to a foreign court and the appointment now under consideration. With much strength it has been contended that a Minister may be appointed who, or whose mission was never mentioned to the Senate. But mark the peculiar condition of a Minister. The President is allowed by law to spend a limited sum on diplomatic appointments, no particular courts are designated; But they are consigned by the Constitution to his pleasure. The truth then is that independently of congress, or either house the President may at any time during the Recess declare the court and the grade. But this power would be nugatory during the recess if he could not also name the Person. How unlike is this example to that of the Coiner, in which the office can be created by congress alone; And in the appointment to which the Senate might have an opportunity, of concurring at the Session when the law was passed creating it? My opinion upon the whole is, that the President cannot now grant a temporary commission to a Chief Coiner. ~~~ Citation: Tench Coxe, Letter to Alexander Hamilton, July 25, 1792, in THE PAPERS OF ALEXANDER HAMILTON 85-94 (ed. Harold C. Syrett, New York University Press: 1967), available at http://founders.archives.gov/documents/Hamilton/01-12-02-0077-0001.

Background: Tench Coxe, who served as a member of Congress as well as the Assistant Secretary of Treasury, discusses in a letter to Alexander Hamilton the power of the president to appoint new surveyors during a recess of the Senate. He references a statute, reproduced in relevant part here, that empowers the president to make such appointments during a recess of the Senate: That if the appointment of the inspectors of surveys, or any part of them, shall not be made during the present session of Congress, the President may, and he is hereby empowered to make such appointments during the recess of the Senate, by granting commissions which shall expire at the end of the next session. 1 Stat. 200 [March 3, 1791]. Quote: 1st. The detached situation of the Eastern Shore of Maryland in regard to the Residence of the Supervisor the difficulty of communicating with him in Winter, the number and wealth of the inhabitants, the disinclination to the Revenue on distilled Spirits, which has been expressed by some of the distillers in its three Southern Counties, the extent of the Supervisors Survey, which will contain seven Counties, if the President should deem it expedient to erect a third survey, and the number of ports in the district which are twenty five are the considerations, which occur in favor of creating another survey. The postponement of the appointment with the provision for the temporary execution of the duties by the Supervisor, has arisen from a doubt 52!

! whether the Power of appointment to any district or survey which may be now erected, did not expire at the end of the last session of the legislature. The power to fill offices during the recess of the senate appears to be applicable, only to such as are established by law, or the constitution. ~~~ Citation: Alexander Hamilton, Letter to George Washington, August 10, 1792, in THE PAPERS OF GEORGE WASHINGTON 645-48 (eds. Robert F. Haggard and Mark A. Mastromarino, Charlottesville: University of Virginia Press, 2002) available at http://founders.archives.gov/documents/Washington/05-10-020427.

Background: In this letter, Alexander Hamilton responds to Washington regarding the appointment of surveyors for review of distilled spirits. Quote: I beg leave to assure you that in the application of the general arrangement which you have adopted respecting the execution of the Act concerning distilled Spirits, the greatest attention will be paid to conomy [sic] as far as the precautions of the Treasury can ensure it. I presume it to have been your intention that the opinion of the Attorney General should be taken as to the Power of the President to appoint the supplementary Officers contemplated during the recess of the Senate; which shall accordingly be done. It affords me much satisfaction to observe that your mind has anticipated the decision to enforce the Law, in case a refractory spirit should continue to render the ordinary & more desirable means ineffectual. My most deliberate reflections have led me to conclude, that the time for acting with decision is at hand: and it is with pleasure, I can add, that an encreasing acquiescence is likely to render this course the less difficult in the cases in which an uncomplying temper may finally prevail. I shall without delay execute your directions respecting the Officers of Cutters. With the highest respect and the truest attachment I have the honor to be &c. ~~~ Citation: Alexander Hamilton, Letter to George Gale, December 20, 1792, THE PAPERS OF ALEXANDER HAMILTON 342-44 (ed. Harold C. Syrett, New York University Press: 1967), available at http://founders.archives.gov/documents/Hamilton/01-13-02-0177.

Background: In this letter to George Gale, Hamilton confirmed that he believed Washingtons recess appointments were constitutional. Quote: When I was first Officially informed by Mr Coxe of the Division of the District of Maryland into three Surveys I was led to beleive [sic] that if the

53!

! President had conceived he could constitutionally appoint the Inspector during the recess of the Senate the Appointment would have immediately taken place. As nothing has been done in this Business since the Meeting of Congress I am becoming very unhappy least there may be some doubts of the Character on whom the Choice should fall. As it is a point in which I am very Materially interested I have taken the Liberty of recalling your Attention to it. Altho [sic] in Compliance with Mr. Coxes Instructions I transmitted the Names of three Gentlemen as very Suitable for the Office I had no Idea that either of the other two Gentlemen Named nor indeed any other person could enter into a Competition with Mr. Perry for the Appointment. He is a Man of Businessis a respectable Character that has served 10 Years in the Senate of Maryland with reputation. He has ever been a Steady friend to the Genl. Government and has an interest in the State which may be very useful. As a proof of his Interest I need only say that he lost but one Vote of the Electors who Chose the last senate. He is the Brother in Law of Mr. Hindman who will soon be a Member of the House of Representatives & has also a considerable influence with another of the new Members. In fine I can assure you that there is no such Character in my Opinion for this appointment tho I doubt not there are many presented to the president. Among others that are here Mentioned tis said A Mr. James Tilghman is a Candidate. He is the Friend & Relative of Mr. Coxe and no Doubt will be supported by him Altho I am convinced that if Mr. Coxe knew Mr. Tilghman as well as I do he would not advocate him. If Mr Tilghman is not a Candidate Mr. Coxe may still very probably thro the Channel of his Connexions [sic] have received very unfavourable impressions of Mr. Perrywho supported Mr. Hindman against Mr Tilghman (in the last Election to Congress) which a mere candid Statement of the facts that then happened would remove. I repeat that I am convinced if you place Mr. Coxe in my Situation he would determine as I dotho [sic] from the Delicacy of the Connexion [sic] I do not think it prudent to Submit the Question to him and therefore beg that you would be pleased to consider this Communication as solely for your own Eye. I have no View in it but the public Interest and I do most solemnly assure you that the promotion of that is the Motive with me for wishing Mr. Perrys appointment. ~~~

Citation:

Alexander Hamilton, Letter to George Washington, June 26, 1796, available at http://founders.archives.gov/documents/Washington/99-01-02-00646.

Background: Hamilton discusses here the possibility of Washington appointing a special envoy to Paris to discuss matters of foreign policy during the recess of Congress. Hamilton did not dwell on the constitutionality of such an act but rather discussed the potential political consequences if action was not promptly taken.

54!

! Quote: Do you suppose that the Executive; in the recess of the Senate, has power in such a case as the one before usespecially if the measure should not be avowed by authority, to send a special character to Paris, as Envoy Extraordinary, to give, & receive explanations? And if there be a doubt, whether it is not probablenay more than probable, that the French Directory would, in the present state of things, avail themselves of the unconstitutionallity [sic] of the measure, to decline receiving him? The policy of delay, to avoid explanations, would induce them to adopt any pretext to accomplish it. Their reliance upon a party in this country for support, would stimulate them to this conduct; and we may be assured they will not be deficient in the most minute details of every occurrence, and every opinion, worthy of communication. If then an Envoy cannot be sent to Paris without the Agency of the Senate, will the information you have received, admitting it should be realized, be Sufficient ground for convening that body? These are serious things; they may be productive of serious consequences; and therefore require very serious & cool deliberation. Admitting, however, that the Powers of the President during the recess, were adequate to such an appointment, where is the character who would go, that unites the proper qualifications for such a Mission; and would not be obnoxious to one party or the other? And what should be done with Mr M.in that case? As the affairs of this country in their administration, receive great embarrassment from the conduct of characters among ourselves; and as every act of the Executive is mis-represented, and tortured with a view to make it appear odious, the aid of the friends to government is peculiarly necessary under such circumstances; and at such a crises as the present: It is unnecessary therefore to add, that I should be glad upon the present, and all other important occasions, to receive yours: and as I have great confidence in the abilities, and purity of Mr Jays views, as well as in his experience, I should wish that his sentiments on the purport of this letter; and other interesting matters as they occur, may accompany yours; for having no other wish than to promote the true and permanent interests of this country, I am anxious, always, to compare the opinions of those in whom I confide with one another; and these again (without being bound by them) with my own, that I may extract all the good I can. Having from a variety of reasons (among which a disinclination to be longer buffitted [sic] in the public prints by a set of infamous scribblers) taken my ultimate determination "to seek the Post of honor in a private Station" I regret exceedingly that I did not publish my valedictory address the day after the Adjournment of Congress. This would have preceeded [sic] the canvassing for Electors (wch [sic] is commencing with warmth, in this State). It would have been announcing publicly, what seems to be very well understood, and is industriously propagated, privately. It would have removed doubts from the minds of all, and left the field clear for all: It would, by having preceeded [sic] any unfavorable change in our foreign Relations (if any should happen) render my retreat less difficult and

55!

! embarrassing. And it might have prevented the remarks which, more than probable will follow a late annunciationnamelythat I delayed it long enough to see, that the current was turned against me, before I declared my intention to decline. This is one of the reasons which makes me a little tenacious of the draught I furnished you with, to be modified and corrected. Having passed, however, what I now conceive would have been the precise moment to have Addressed my Constituents, let me ask your opinion (under a full conviction that nothing will shake my determination to withdraw) of the next best time, considering the present, and what may, probably, be the existing state of things at different periods previous to the Election; or rather, the middle of Octr beyond which the promulgation of my intentions cannot be delayed. Let me hear from you as soon as it is convenient; and be assured always of the sincere esteem, and affecte [sic] regard of[.] ~~~ Citation: Timothy Pickering, Letter to George Washington, July 2, 1796, available at http://founders.archives.gov/documents/Washington/99-01-02-00676.

Background: Timothy Pickering, in his role as Secretary of State, argues in this letter to George Washington that the President did not have the power to create and appoint the position of a special envoy to France. Quote: Agreeably to your directions, we have consulted together on the subject of your letter of the 24th of June; and we are of opinion that a direct explanation should be asked of Mr Adet, the minister of the French Republic, in the terms of the inclosed draught of a letter to him, which, as you desired, will be sent without delay. We are also of opinion that the Executive has not the power, in the recess of the Senate, to originate the appointment of a minister extraordinary to France; and that the recall of Mr Monroe, by creating a vacancy, can alone authorize the sending of a new minister to that country. On the expediency of this change we are agreed. We think the great interests of the United States require that they have near the French Government some faithful organ to explain their real views and to ascertain those of the French. Our duty obliges us to be explicit. Altho the present minister plenipotentiary of the United States at Paris, has been amply furnished with documents to explain the views and conduct of the U. States, yet his own letters authorize us to say, that he omitted to use them, and thereby exposed the U. States to all the mischiefs which could flow from jealousies & erroneous conceptions of their views and conduct. Whether this dangerous omission arose from such an attachment to the cause of France has rendered him too little mindful of the interests of his own country, or from mistaken views of the latter, or from any other cause, the evil is the same. We therefore conceive it to be indispensably necessary that the present minister plenipotentiary of the United States at Paris should be recalled, and another American Citizen appointed in his stead. Such being our opinion, we beg leave to name for your consideration Patrick Henry & John Marshall of 56!

! Virginia, & Charles Cottesworth Pinckney & William Smith of South Carolina, either of whom would, we believe, so explain the views and conduct of the United States as to satisfy the French Republic, and thereby remove the danger of a rupture or inconvenient controversy with theat [sic] nation; or failing of this desirable effect, to satisfy the citizens of the United States that the fault was not to be imputed to their own government. ~~~

b. Constitutional Practice Citation: George Washington, Letter to William Drayton, November 18, 1789, in THE PAPERS OF GEORGE WASHINGTON 305-06 (ed. Dorothy Twohig, vol. 4, Charlottesville: University of Virginia Press, 1993), available at http://founders.archives.gov/documents/Washington/05-04-02-0212.

Background: President Washington nominated William Drayton to the position of District Judge of South Carolina. The Senate recessed on September 29, 1789, and the appointment as indicated by this letter was made on or around November 18, 1789. Quote: The Office of Judge of the district [sic] Court in and for South Carolina District having become vacant; I have appointed you to fill the same, and your Commission therefor is enclosed. You will observe that the Commission which is now transmitted to you is limitted [sic] to the end of the next Session of the Senate of the United States. This is rendered necessary by the Constitution of the United States, which authorizes the President of the United States to fill up such vacances [sic] as may happen during the recess of the Senateand appointments so made shall expire at the end of the ensuing Session unless confirmed by the Senate; however there cannot be the smallest doubt but the Senate will readily ratify & confirm this appointment, when your commission in the usual form shall be forwarded to you. ~~~ Citation: George Washington, Letter to John Fitzgerald, April 12, 1793, in THE PAPERS OF GEORGE WASHINGTON 446-47 (eds. Christine Sternberg Patrick and John C. Pinheiro, Charlottesville: University of Virginia Press 2005), available at http://founders.archives.gov/documents/Washington/05-12-020351.

Background: Washington enclosed a letter to Charles Lee that disclosed that John Fitzgerald was his successor for the office of the Collector at Alexandria. Washington instructed Thomas Jefferson to issue a commission appointing Fitzgerald to this position on April 19, 1793. Congress recessed on March 2, 1793. ! 57!

! Quote: Enclosed is an open Letter to mister Lee, Collector at Alexandria, requesting him to deliver up the Office books & papers to you; tho it would be more regular, & in my opinion better that the matter should be suspended until I return to Philadelphia, (for which place I shall set out tomorrow) when a Commission will issue agreeably to Constitutional modes. I am Sir, &c. ~~~

c. Influence of Politics Citation: George Washington, Letter to Edmund Randolph, November 30, 1789, in THE PAPERS OF GEORGE WASHINGTON 348-49 (ed. Dorothy Twohig, vol. 4, Charlottesville: University of Virginia Press, 1993), available at http://founders.archives.gov/documents/Washington/05-04-02-0246.

Background: Washington discusses in this letter to his attorney general, Edmund Randolph, the status of several of his recess appointments. In particular, he discusses that Edmund Pendleton of Virginia declined the position of District Judge, so Washington recess appointed Cyrus Griffin to the position. Washington does not appear to think that his recess appointment was in conflict with Randolphs position. Quote: I shall now mention some matters to you in confidence. Mr Pendleton declining to accept the appointment of District Judge has embarrassed me & this embarrassment was not a little encreased by the lateness of the period at which (being on a tour through the Eastern States) I came to the knowledge of it. When I was about to make the nominations in the Judiciary, for the Union, the character & abilities of Mr Wythe did not escape me & I accordingly consulted such Gentlemen from the State of Virginia (then in this City) as I thought most likely to have some knowledge of his Inclinations. There opinion was, that as he had lately been appointed sole Chancellor (an Office to which by inclination he was led) and engaged in other avocations which engrossed his attentions and appeared to afford him pleasure he would not exchange the former for a federal appointment. However, Since these appointments have been announced, I have heard that it has been the wonder of some, in Virginia, that Mr Wythe should have been overlooked. The cause (if the epithet applies) I have assigned. and if there was reason to apprehend a refusal in the first instance the Non-acceptance of Colo. Pendleton would be no inducement to him to come forward in the second. To consult him, through the medium of a friend, there was not time, as the 3d Tuesday in Decr is the day appointed for holding the District Court in the District of Virgaand to hazard a second refusal I was, on many accts, unwilling to do. Under these circumstances I have by the Power of the Constitution, appointed Mr Cyrus Griffin during the recess of the Senate. My reasons for this appointment in preference to any other except Mr Wythe are because he has (as I am informed) been regularly bred to the lawhas been in the Court of AppealsHas been discontinued of the Council in Virginia 58!

! (contrary to the expectation of his friends here at the time, who thought that his temporary appointment as a Negociator with the Southern Indians would not bring him under the disqualifying law of Virginia) and thereby throw him entirely out of employmentand because I had it in my power to ascertain with precision his acceptance. I shall say nothing of his being a Man of amiable character & of competent abilities, because in these respects some of the present Judges in that State may be his equalsbut to what I have said, may be added, he has no employment now and needs the emolument of one as much as any of them. I will not conceal from you, that two motives have induced me to give this explanation. The first, if a favourable opportunity should present itself is, that Mr Wythe may, in a delicate manner, be informed of the principles by which I was governed in this businessthe second that my inducements to appoint Mr Griffin may not (if the propriety of it should be questioned) be altogether unknown. For Having in every appointment endeavoured, as far as my own knowledge of characters has extended, or information could be obtained, to select the fittest and most acceptable Persons; & having reason to believe that the appointments which have been made heretofore have given very general satisfaction it would give me pain if Mr Wythe or any of his friends should conceive that he has been passed by from improper motives. I have prejudices against nonenor partialities which shall biass me in favor of any one. If I err then, my errors will be of the head and not of the heart ofMy Dear Sir, Your Most Obedient and Affectionate Humble Servant ~~~ 2. John Adams Administration (1797-1801) a. Interpretation of the Recess Appointments Clause Citation: James McHenry, Letter to Alexander Hamilton, April 26, 1799, in THE PAPERS OF ALEXANDER HAMILTON 69-72 (ed. Harold C. Syrett, New York University Press: 1967), available at http://founders.archives.gov/documents/Hamilton/01-23-02-0058.

Background: During a Senate recess, a question arose about the constitutionality of John Adams issuing an army appointment to John Hastings. In this letter, James McHenry, Secretary of War, expressed doubts about whether an Act of Congress had authorized Adams to make the appointment. Quote: A question has arisen, respecting appointments, to a part of the Army establishment, on which I have to request your opinion, as soon as convenient, viz: Is it within the authority of the President, to appoint, the Officers, to the additional batalion [sic], to the second Regiment of Artillerists and Engineers,

59!

! directed to be raised by an act, for the better organizing of the troops of the United States and for other purposes, passed the 3d. March 1799? The Constitution of the United States, art. 2. Sect. 2. provides, that, Congress may by law, vest the appointment of certain inferior officers, as they think proper, in the President alone, in the Courts of law, or in the heads of departments, and that, the President shall have power 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. It would seem, that under this Constitutional power, the President cannot alone make certain appointments or fill up vacancies that may happen during a session of the senate, without an express power derived from an act of Congress. The following acts are refered to viz: 1. An Act for raising and adding another regiment to the military establishment of the United States, and for making further provision for the protection of the frontiers, passed the 3d. March 1791, which enacts, that the President be, and he hereby is impowered [sic] to organize the said levies, and alone to appoint the Commissioned Officers thereof, in the manner he may judge proper. 2. An Act for making further and more effectual provision for the protection of the frontiers of the United States, passed the 5 March 1792: Which enacts that the President alone be, and he hereby is authorized to appoint for the Cavalry so to be engaged, the proper commissioned Officers. 3d. An Act to augment the army of the United States, and for other purposes. passed the 16th. July 1798which enacts, and in recess of Senate, the President of the United States, is hereby authorized, to appoint all the regimental officers, proper to be appointed under this act, and likewise to make appointments, to fill any vacancies in the army, which may have happened, during the present session of the senate. 4th. An Act, authorizing the President of the United States, to fill certain vacancies in the army and navy, passed the 3d. March 1799, which enacts That the President of the United States shall be, and he is hereby authorized, to make appointments, to fill any vacancies in the army and navy, which may have happened during the present session of the Senate. See also an act authorizing the President of the United States, to raise a Provisional Army, passed the 28 May 1798, and supplement to the aforesaid act, passed 25 June 1798. Is it not evident from the above acts, that it was the opinion of Congress, the Constitution did not authorize the President, to fill up any vacancies in the army, which might happen during a Session of the Senate, but that an express authority for the purpose was indispensibly necessary to be vested in him by law? ! 60!

! If such is the meaning of the Constitution with respect to actual vacancies, occuring during a Session of the Senateanother principle requires mature consideration, and a clear decision, before Officers can be appointed to the companies, intended to compose, the additional batalion of Artillerists in questionviz: Whether Offices, created, during the late session of the senate, and not then filled by appointments, by and with their advise and consent, can now be considered, as offering vacancies, happening during the said Session, to the filling of which the President is competent, independent of any act, by virtue of that part of the Constitution, which declares The President shall have power 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. ~~~ Citation: Alexander Hamilton, Letter to James McHenry, May 7, 1799, in THE PAPERS OF ALEXANDER HAMILTON 94-95 (ed. Harold C. Syrett, New York University Press: 1967), available at http://founders.archives.gov/documents/Hamilton/01-23-02-0082.

Background: In this letter, Hamilton issues a response to James McHenry regarding army appointments made during a recess of the Senate. Quote: After mature reflection on the subject of your letter of the 26th. of last month; I am clearly of opinion that the President has no power to make alone the appointment of Officers to the Batalion [sic], which is to be added to the second Regiment of Artillerists and Engineers. In my opinion Vacancy is a relative term, and presupposes that the Office has been once filled. If so, the power to fill the Vacancy is not the power to make an original appointment. The phrase Which may have happened serves to confirm this construction. It implies casualtyand denotes such Offices as having been once filled, have become vacant by accidental circumstances. This at least is the most familiar and obvious sense, and in a matter of this kind it could not be adviseable to exercise a doubtful authority. It is clear, that independent of the authority of a special law, the President cannot fill a vacancy which happens during a session of the Senate. ~~~ b. Influence of Politics Citation: Henry Tazewell, Letter to James Madison, March 18, 1798, in THE PAPERS OF JAMES MADISON 92-98 (eds. David B. Mattern, J.C.A. Stagg, Jeanne K. Cross, and Susan Holbrook Perdue, Charlottesville: University Press of Virginia, 1991), available at http://founders.archives.gov/documents/Madison/01-17-02-0065.

61!

! Background: Henry Tazewell, a U.S. Senator from Virginia and political opponent of the Adams administration, argued that President Adams nomination of his son John Quincy to negotiate a treaty with Sweden was unconstitutional, since the diplomatic position was created during a recess of the Senate. Quote: A few days agoMr Adams nominated his son to negotiate a Treaty with Sweden, in the following very extraordinary termsInsinuations having been repeatedly made, in the name of the Court of Sweden, of an inclination to renew the connection between the US & that powerI sent in the recess of the Senate, to our Minister at Berlin, a full power to negotiate that business with such alterations as might be agreeable to both partiesbut as that commission, if not renewed with the advice and consent of the Senate would expire with the end of the present Session of CongressI now nominate J. Q. Adams to be a Commissioner with full powers to negotiate a Treaty of Amity and Commerce with his majesty the King of Sweden. This being a new office, and not the annexation of a new power to an old office, I denied the constitutionality of the Commission given in the recessand objected to the confirmation of the appointment because from the terms of the message it must amount to a sanction of that act. I also objected to the policy of renewing our Treaty with Sweden which is about to expire upon the ground principally that we had better withdraw as fast as possible from connections in Europe, and not further entangle ourselves by new Engagements. In discussing this latter pointit leaked out, that the object was, to form alliances, to enable us to resist France. And I am persuaded this is the present policy of the Executive. The Executive party in the Senate first explained away the term Advice in the Constitution as preceeding [sic] Consent in the case of Treatiesby urging that a concurrence in the nomination of a Minister to treat was a sufficient check on the President in executing the Treaty power. When they had got enough precedents to destroy as they suppose, the effect of that expressionthey then set to work to justify the president in naming a Minister, and making a Treaty in the recess of Congressby which they even deny to the Senate that Check which at first they allowed to exist. After this Conduct what is the Constitution? Any thing, or nothing, as the rulers chuse [sic]. You will remember that this was a proceeding with closed Doors. ~~~ 3. Thomas Jeffersons Administration (1801-1809) a. Interpretation of the Recess Appointments Clause Citation: Thomas Jefferson, Letter to Wilson Cary Nicholas, January 26, 1802, in THE PAPERS OF THOMAS JEFFERSON 433-34 (ed. Barbara B. Oberg, vol. 36, Princeton: Princeton University Press, 2009), available at http://founders.archives.gov/documents/Jefferson/01-36-02-0280.

Background: Jefferson wrote to Senator Wilson Cary Nicholas of Virginia discussing two plausible interpretations of the Recess Appointments Clause. Here, Jefferson ! 62!

! admits to the need for a clear rule for recess appointments, yet defers resolution of the constitutional question to a later time. Quote: The phrase in the constitution is to fill up all vacancies that may happen during the recess of the Senate. this may mean vacancies that may happen to be or may happen to fall. it is certainly susceptible of both constructions, and we took the practice of our predecessors as the commentary established. this was done without deliberation; and we have not before taken an exact view of the precedents. they more than cover our cases. but I think some of them are not justifiable. we propose to take the subject into consideration, and to fix on such a rule of conduct, within the words of the constitution, as may save the government from serious injury, & yet restrain the Executive within limits which might admit mischief.you will observe the cases of Read & Putnam, where the persons nominated declining to accept, the vacancy remained unfilled & had happened before the recess. it will be said these vacancies did not remain unfilled by the intention of the Executive, who had, by nomination, endeavored to fill them. so in our cases, they were not unfilled by the intention of the successor, but by the omission of the predecessor. Chas. Lee informed me that whenever an office became vacant so short a time before Congress rose, as not to give an opportunity of enquiring for a proper character, they let it lie always till recess. however this discussion is too long for a letter. we must establish a correct & well digested rule of practice, to bind up our successors as well as ourselves. if we find that any of our cases go beyond the limits of such a rule, we must consider what will be the best way of preventing their being considered as authoritative examples. in the mean time I think it would be better to give the subject the go-by for the present, that we may have time to consider and to do what will be best for the general safety. health & respect ~~~ b. Presidential Practice Citation: Thomas Jefferson, Letter to Theodore Foster, May 9, 1801, in THE PAPERS OF THOMAS JEFFERSON 66-67 (ed. Barbara B. Oberg, vol. 34, Princeton: Princeton University Press, 2009), available at http://founders.archives.gov/documents/Jefferson/01-34-02-0049.

Background: Here Jefferson discusses his appointment of David L. Barnes to the position of district judge for Rhode Island. Quote: You will have seen that your recommendation in favor of mr Barnes, has been more than respected, as he has been offered a judges commission, in the place which mr Greene had expected. tho I had observed mr Greene to be very decidedly in the principles called federal, yet he was gentlemanly & liberal in his manners, & had inspired me with a degree of estimation which I did not feel for some others. but you know the maneuvre which was practised [sic] on the 4th. of Mar. to prepare a negative for one of the most important nominations it was expected I should make. they meant by 63!

! crippling my rigging to leave me an unwieldy hulk, at the mercy of the elements. to this maneuvre [sic] mr Greene lent himself, going out of the line of conscientious duty to put himself in the way of this operation. when therefore his commission proved to have been a nullity, and it fell on me to fill the place, I could not in prudence put into power one who had given such a proof of the use he would make of it to obstruct & embarrass my administration. ~~~ Citation: David Leonard Barnes, Letter to Thomas Jefferson, May 18, 1801, in THE PAPERS OF THOMAS JEFFERSON 131-32 (ed. Barbara B. Oberg, vol. 34, Princeton: Princeton University Press, 2009), available at http://founders.archives.gov/documents/Jefferson/01-34-02-0102.

Background: John Adams nominated District Judge Benjamin Bourne of Rhode Island to a circuit court position created under the Judiciary Act of 1801, with Senator Ray Greene being nominated and confirmed to take Bournes place. However, soon after the Judiciary Act was repealed and caused Bourne to lose the position, and an erroneous commission appointed Greene as circuit judge instead of district judge. Jefferson recess appointed David Barnes to the district judge position rather than correcting the error.! Quote: I should do great injustice to my own feelings, if I did not in addition to the usual Letter to the Secretary of State, declaring my acceptance of the appointment as District Judge, trouble you with this personally, to acknowledge the high sense I have of the honor done me, by that appointment both on account of the confidence you have thought proper to place in me, and the very friendly manner in which it has been done I never doubted but that Mr. Greens appointment was unconstitutional, though he informed me that a majority of the Senate were of a contrary opinionI told him however that if he was eventually appointed, I presumed his Commission would be a temporary one, as I was fully convinced any other Commission, would expire with the next Session of the SenateThe Letter from the Honorable Levi Lincoln was so very explicit, the principles so self evident, and the inference so conclusive, that I believe there is not a doubt remaining on the mind of any reasonable man who has seen itIn addition to its having excited in me a degree of sinsibility [sic] which I cannot express, it has quieted the doubts and apprehensions of all candid men and fully confirmed the confidence in your administration which the people of this State were before disposed to indulgeI doubted at first about the propriety of shewing it, but upon consideration, was convinced it would have the effect it has producedIf I had not shewn it, Jealousy the offspring of disappointment, would have started a thousand suggestions that I had endeavoured [sic] to obtain the office to the exclusion of Mr GreenThese are now entirely preventedand the confidence of my fellow citizens, with which I have been flattered for some time past, I find is encreasd by this appointment, and of course it gives me an opportunity, as far as is consistent with the duty of the office I retain, to be the more useful, in the support of 64!

! the wise and prudent measures which I have every reason to believe you will pursue and will characterize your AdministrationWith Sentiments of the highest Respect ~~~

Citation:

Thomas Jefferson, Memorandum, July 19, 1802, in THE PAPERS OF JAMES MADISON 401-02 (eds. David B. Mattern, J.C.A. Stagg, Jeanne K. Cross, and Susan Holbrook Perdue, Charlottesville: University Press of Virginia, 1991), available at http://founders.archives.gov/documents/Madison/02-03-020489.

Background: Jefferson recess appointed the following people in his memorandum date July 19,1802. Congress recessed on March 3, 1802. Citation: Henry Warren (of Mass) to be Collector of Marblehead v. Samuel R. Gerry. William Lyman of Massachusetts to be Collector of Newbury port, vice Dudley A. Tyng William R. Lee of Massachus: to be collector of Salem & Beverley vice Joseph Hiller Peter Muhlenburg of Pensylvania to be Collector of vice George Latimer John Page of Virginia to be Collector of Petersburg v. William Heth. Tench Coxe of Pensylvania to be Supervisor of Pensylvania v. Peter Muhlenburg. Perhaps it may be better to inclose blank commissions to mr. Gallatin in all the above cases, to be filled up & sent out by him, all together, on his return. ~~~ 4. James Madisons Administration (1809-1817) a. Interpretation of the Recess Appointments Clause Citation: James Madison, Letter to Edward Coles, October 15, 1834, available at http://founders.archives.gov/documents/Madison/99-02-02-3051.

Background: In this letter to Edward Coles, who served as Illinois second Governor, James Madison defends the presidential powers of appointment and removal. Quote: Another innovation brought forward in the Senate, claims for the Legislature, a discretionary regulation of the tenure of offices. This also would vary the relation of the Departments to each other, and leave a wide field for Legislative abuses. The power of removal, like that of appointment, ought to be fixed by the Constitution; and both, like the right of suffrage and apportionment of Representatives not be dependent on the Legislative will. 65!

! In Republican governments, the organization of the Executive Department will always be found the most difficult and delicate, particularly in regard to the appointment, and most of all to the removal of officers. It may well deserve consideration how far the present modification of these powers can be constitutionally improved. But apart from the distracting and dilatory operation of a veto in the Senate, on the removal from Office, it is pretty certain that the large States would not invest with that additional prerogative, a Body constructed like the Senate, and endowed as it already is, with a share in all the departments of power, Legislative Executive and Judiciary. It is well known that the large States in both the Federal and State Conventions, regarded the aggregate powers of the Senate as the most objectionable feature in the Constitution. b. Presidential Practice Citation: Thomas Jefferson, Letter to James Madison, March 24, 1809, in THE PAPERS OF JAMES MADISON 70-78 (ed. Thomas A. Mason, Robert A. Rutland, and Jeanne K. Sisson, vol. 15, Charlottesville: University Press of Virginia, 1985), available at http://founders.archives.gov/documents/Madison/03-01-020088.

Background: Madison recess appointed Francis Page to the position of collector of customs at Yorktown, then on May 27, 1809, forwarded the regular nomination to the Senate. See Richard C. M. Page, GENEALOGY OF THE PAGE FAMILY IN VIRGINIA 87 (New York: 1893). In this letter, Jefferson is speaking to Pages character. Quote: I inclose [sic] you several letters which must have been intended for the office, & not the person named on the back. They belong therefore to your files, and I will pray you particularly as to those asking office on this & all other occasions to consider me merely as the channel of conveyance, & not as meaning to add an atom of weight to the sollicitations they convey unless indeed I know any thing on the subject & mention it particularly. As in the case of Francis Page, being acquainted with him it is my duty to say that he is a most amiable young man, educated to the bar, perfectly correct in his conduct, and, as the son of our late friend, of good standing. I do not presume that York can present a more worthy or unexceptionable subject. Among these letters is one from Ray author of the War of Tripoli. He sent me one of his books, & in answering him with thanks I used the complimentary phrase he quotes. He lays hold of it to beg 100. D. of which I shall not be the dupe. I inclose it to you, as I think he has too much genius for the low station in which he was in the navy, and to place him in your recollection, if any occasion should arise wherein such a man can be useful in the navy or elsewhere. I send Mazzeis letter for your perusal. The part for your attention is in [ ] altho [sic] no part of it is secret. I intended, but forgot to mention to you Genl. Dearbornes son for a military commission. I should have named him; but mr. [sic] Smith of the W. O. told me Pickering had been collecting some stories to oppose his nomination, which might have ! 66!

! weight if not answered. I desired him therefore to write to the General & in the mean time to hold up the nomination. God bless you & prosper you. ~~~ Citation: John Boyle, Letter to James Madison, April 6, 1809, in THE PAPERS OF JAMES MADISON 101-02 (ed. Thomas A. Mason, Robert A. Rutland, and Jeanne K. Sisson, vol. 1, Charlottesville: University Press of Virginia 1985), available at http://founders.archives.gov/documents/Madison/03-01-02-0116.

Background: In this letter, John Boyle, a former member of the U.S. House of Representatives and a Kentucky Court of Appeals judge, recommends Ninian Edwards for a recess appointment as the Governor of the Illinois Territory. Quote: I owe to you an apology for the resignation of the office of Governor of the Illinois Territory which you so lately had honoured [sic] me with & I had agreed to acceptWhen I reached this State a vacancy had taken place in the court of appeals the spring term of which was immediately to commence Owing to the unexpected absence of another of the judges an apprehension was entertained unless the vacancy could instantly be supplyed that there would be a dissolution of the court & a whole term lost to the State. Under these circumstances pressed by the solicitude of the gentlemen of the bar & by the wishes of my family & friends as well as urged by the difficulty the executive had experienced in making a proper selection to fill the vacancy I have accepted the appointmentI ought also to mention that owing to the peculiar & delicate state of my familys health I would not have been able to have gone to the Territory for several weeks yet, so that if the vacancy occasioned by my resignation can be immediately filled my successor will be but a few weeks later than I would have been in arriving at the seat of the territorial government. These circumstances will I hope in your opinion furnish some excuse if not justifycation [sic] for my conduct. Permit me now, Sir, to recommend Ninian Edwards as a proper person to fill the appointment of Governor of the Illinois Territory. He is a man of great talents & of unquestionable integrityNo man in the state has a juster claim to an office of that kind. He is willing to accept the appointment & will be ready to proceed immediately to the territory should he be honoured with the appointmentI refer you to Mr Pope or Mr Johnson or Mr Howard if any of them should be at Washington for more satisfactory information if required as to Mr Edwards qualifycations [sic] for such an office. I have the honour to be with great respect & esteem your obt St ~~~ 67!

! Citation: Quote: James Madison, To the Senate, February 27, 1813, available at http://founders.archives.gov/documents/Madison/03-06-02-0072. I nominate Oliver H. Perryappointed a master-commandant during the recessto be a master commandant in the navyto take rank of those lately nominatedto be masters commandant. ~~~ Citation: Quote: George Graham, Letter to James Madison, December 12, 1816, available at http://founders.archives.gov/documents/Madison/99-01-02-5624. I have the honor respectfully to propose for your approbation the appointment of John Edgar as a Brigadier Gnl. of the Militia in the Illinois Territory, Made during the recess of the Senate. ~~~ c. Influence of Politics Citation: James H. Blake, Letter to James Madison, January 8, 1810 (abstract), in THE PAPERS OF JAMES MADISON 163-64 (eds. David B. Mattern, J.C.A. Stagg, Jeanne K. Cross, and Susan Holbrook Perdue, Charlottesville: University Press of Virginia, 1991), available at http://founders.archives.gov/documents/Madison/03-02-02-0196.

Background: Madison recess appointed James Blake as a justice of the peace and later nominated him to be a collector of direct tax. The Senate postponed the appointment and rejected Madisons next appointment as garrison surgeons mate in the District of Columbia. See Allen C. Clark, James Heighe Blake, the Third Mayor of the Corporation of Washington [1813-17], RECORDS OF THE COLUMBIA HISTORICAL SOCIETY 24 (1922). Quote: Believes his character has been much traduced and vilely slandered to JM and therefore begs him to refer to his testimonials on file in the Department of State. Denies he is a violent Man, though he admits he had the misfortune to be involved in a controversy at Richmond with one of Jno. Randolphs party. Refers to the sacrifices he has made to support the cause of Republicanism and seeks an appointment, since his profession does not enable him to provide for the pressing demands of a large family. ~~~ Citation: Hugh Holmes, Letter to James Madison, February 23, 1810 (abstract), in THE PAPERS OF JAMES MADISON 254 (eds. David B. Mattern, J.C.A. Stagg, Jeanne K. Cross, and Susan Holbrook Perdue, Charlottesville: University Press of Virginia, 1991), available at http://founders.archives.gov/documents/Madison/03-02-02-0308.

68!

! Background: Henry Daingerfield was a grandson of Madisons aunt and received a recess appointment as secretary of the Mississippi Territory on June 30, 1810. The Senate had recessed on May 1, 1810. Quote: Asks JM to find a position in one of the territories for Henry Daingerfield. Because he is your distant relation and a Virginian I feel a confidence that you will render a service to him which he deserves and thereby a greater One to your Country. The secretaryship in Mississippi would be appropriate, since Daingerfield is the bosom friend of the governor. ~~~ Citation: James Taylor, Letter to James Madison, February 20, 1811, THE PAPERS OF JAMES MADISON 172-74 (eds. David B. Mattern, J.C.A. Stagg, Jeanne K. Cross, and Susan Holbrook Perdue, vol. 3, Charlottesville: University Press of Virginia, 1991), available at http://founders.archives.gov/documents/Madison/03-03-02-0230.

Background: James Taylor discusses here why Judge Coburns commission as a judge in Louisiana, which was set to expire during the next recess of Congress, should be renewed during the then present session of the Senate. Quote: Judge Coburn informs me his commission as Judge of Louisiana expires in November next during the recess of Congress; that under similar circumstances a Commission was renued [sic] (before it had expired) so as to prevent a failure of an important term of that Court. I expect the Judge will write to you on this subject and state to you the reason why it would be proper to renew his commission during the present session. I am assured that Judge Coburn has performed his duty to the utmost extent, and I am sure he will continue to do so as long as he may be honored with the Confidence of his goverment [sic]. His removal to that country is as yet uncertain, but I am well informed his want of residence is no Objection by the people of the Territory. I am convinced they are perfectly satisfied that he should hold the Office under the Circumstances he now holds it. Of this I am sure abundant proof could be produced. I know of my own knowledge that he has not missed a meeting of the Legislature or a Term of the Court since his appointment. Mr Coburns want of residence may by some who wish to get him out of Office, be made use of, but it is really a doubt with me whether in the agitated state of a New Territory: a Judge who is far removed from popular influence is not to be prefered [sic] to a resident, on whom the local impressions are sure to produce unpleasant effects. But should you have any doubts on this subject I am well informed you can be furnished with abundant evidence of his standing in that Country; and if ! 69!

! you would be so good in such case to signify your wish of such evidence I will venture to say it shall be furnished you. The Judges politics has been the same since my first acquaintance with him which has been for eighteen years. He has been always popular as a Judge without ever appearing to take any pains to be so. He is firm and dignified, and I declare that I think he commands as much respect and presides with as much dignity as any Judge I ever saw. I am sure Govr. Howard thinks well of him and no doubt but you & him have had some conversation on this subject. On the subject I took the liberty of saying some thing some time since, I have now to Observe, that I have lately been informed that the Petition has been industr[i]ously circulated & a number of signatures procured. I am informed that great numbers of signatures were procured at the Market at Cincinnati a few days ago. I confess I do not for my own part apprehend much danger, but I submit it to your super[i]or judgment, the propriety of convincing the people the injury that the leaders of this improper course may do to those people who may be in arrear to the Goverment [sic] for lands purchased in the state of Ohio. This arrangment [sic] perhaps could be made thro the representation of that state when they return. This business has been set on foot by some designing persons to answer some design. It is possible you may be much better informed on this subject than I can do it, but feeling an interest in every thing that concerns my Country & particularly your administration, I think it my duty to give you information from time to time of every occurrence that I may think may effect my beloved Country. If the information should be unimportant I am convinced yourself and all composing the Administration will appr[e]ciate my intentions. My family, my property, my all, is in this country. I am therefore deeply interested in every thing that concerns the Western country, and I think all of us who have it in our power ought to set our faces against any act or measure that may have a tendency to create jealousies in the Eastern states. I have the honor to be with the greatest respect Sir Your Obedt. Hble servt [sic] ~~~ Citation: James Madison, Letter to Albert Gallatin, August 2, 1813, in THE PAPERS OF JAMES MADISON 491-94 (eds. David B. Mattern, J.C.A. Stagg, Jeanne K. Cross, and Susan Holbrook Perdue, vol. 6, Charlottesville: University Press of Virginia, 1991), available at http://founders.archives.gov/documents/Madison/03-06-02-0464 (emphasis in original).

Background: Madison nominated Albert Gallatin, who was then serving as Secretary of the Treasury, as a member of the commission to negotiate peace with Great Britain, but refused, however, to negotiate with the Senate Committee

70!

! regarding the nomination. There were complaints that Madison could not use his recess appointment power when the position he sought to fill was not previously vacant. Quote: You will learn from the Secy of State the painful manner in which the Senate have mutilated the Mission to St Petersburg: But the course and circumstances of the proceeding may require more of explanation than may fall within his scope and more indeed than can well be conveyed on Paper. Previous to sending in the nomination of the Envoys there was no indication, that if the popularity of the object did not prevent opposition, it would extend beyond a portion of the Senate essentially short of a Majority, and there is reason to believe that if a preliminary attempt to embarrass the subject had been decided on at the proper time and before outdoor means could be interposed the desired and expected result would have been secured. Liberality however yielded to an adjournment of the question and the opportunity afforded by it was industriously improved. The first step after formally ascertaining the arrangement under which you were included in the Mission was, to obtain a vote declaring an incompatibility (without specifying, whether constitutional or other wise) between the domestic & diplomatic appointments. The tendency of this proposition to comprehend as many and to commit as much as possible is obvious. It would seem notwithstanding that the vote of incompatibility was concurred in by some who regarded it not as an obstacle to an ultimate concurrence in the nomination but rather as a protest throwing the whole responsibility on the Executive. The next step was to communicate this opinion of the Senate to me with a view either to extort a compliance or to unite against the nomination all or as many as possible who had concurred in the vote of incompatibility. In this stage of the Business it was the confident opinion of the supporters of the nomination that inflexibility on the part of the executive would ensure a majority for it and urgent advice, as well on general grounds as on that particular calculation, not to yield to the irregular views of the adverse party. The event proved that the final purposes of certain individuals on whom the turning of the scale depended had been miscounted. It is not easy to express the mixed feelings produced by the disappointment or the painfulness of my own in particular. It was at first suggested from some friendly sources, as the most advisable in such a posture of things, to send in a renomination founded on a vacancy in the Secretaryship of the Treasury and under certain points of view this expedient had its recommendations. They were met, however, by difficulties & considerations not to be got over 1st. The ground taken by the executive did not admit a compliance with the conditions imposed by the Senate without palpable inconsistency. 2d. Those who had approved and urged this ground could not brook the idea of putting their opponents ostensibly in the right and themselves in the wrong. 3d. It was calculated that the mediation if accepted by Great Britain would be over and the Envoys on their way Home before the decision of the Senate could reach Petersburg and that this last would certainly be the case should the mediation be rejected as was becoming more and more probable especially considering the prospects on the continent and as seems now to be put beyond doubt by a late communication from Beasely at London. Nor were these the ! 71!

! only views of the subject. It was apprehended by some of the best disposed and best informed of the Senate that a renomination would not secure the object. As it had become certain that the open and secret adversaries together amounted to a formidable number who would be doubly gratified by a double triumph it was suspected that after succeeding in getting the Treasury vacated it would be a prerequisite to a confirmation of the other appointment that the vacancy should be actually filled in order to prevent its being kept open for your return which might be, looked for within the term of six months and that with this view a resolution might be obtained declaring the inconsistency of a protracted vacancy with the public service and the incompatibility of the two offices held by the Secretary of the Navy, to be used in like manner with the first resolution as a motive or pretext for embarassing [sic] and if possible getting rid of the renomination. It is certain that some who had intimated an intended change of their votes in case the Treasury Department should be vacated had in view that the vacancy should be forthwith filled and even that a nomination to it should go in with the renomination. Whether a majority would have gone such lengths is uncertain, but strong symptoms existed of a temper in the body capable of going very great lengths. And apart from all other considerations it would have been impossible, even if it had been intended to make and fill a vacancy in the Treasury Department, that the consent of the Senate in the other case could be purchased by a pledge to that effect. Besides the degradation of the executive it would have introduced a species of barter of the most fatal tendency. I have given you this summary, that you may understand the true character of a proceeding which has given us so much concern. I will add to it two observations only. 1st. That the Senate by resting their negative on the opinion of official incompatibility acknowledge a personal fitness and so far have defeated their own hostility. 2d. That the whole proceeding according to every friendly opinion will have the effect of giving you a stronger hold on the confidence and support of the nation. Judging from the effect as already known this cannot fail to be the case. I have just recovered strength enough, after a severe and tedious attack of bilious fever, to bear a journey to the mountains whither I am about setting out. The Physicians prescribe it as essential to my thorough recovery and security against a relapse at the present season. For recent occurrences and the general state of affairs, I refer to the official communications going by this conveyance. If it were less inconvenient to me to lengthen my Letter, I should recollect that I send it without expecting that it will find you at Petersburg, should it happen not to be intercepted on its passage. Accept my affectionate Esteem & best wishes. ~~~ Citation: Anonymous, Letter to James Madison, 1815, available at http://founders.archives.gov/documents/Madison/99-01-02-4099.

Background: This anonymous letter to Madison expressed criticism of Madisons nomination of Albert Gallatin to negotiate peace with Great Britain.

72!

! Quote: Mr Gallatins Commission to treat of Peace with Great Britain, under the mediation of Russia, bears date the 7th. April 1813. This appointment was made in the Recess of the Senate, and on their meeting, was not approved by them. The letter notifying Mr. Gallatin of this circumstance is dated 5th. August 1813. When it was received by him is not known, but it seems proper that his salary should be allowed up to that period. His second appointment, to treat at Gottenburg or Ghent, bears date the 9 February 1814. In this appt. the Senate concurred. Quere--Ought the compensation in this instance to commence with the date of the Commission or on the receipt of it by him in Europe? There is no precedent that will bear on the case. It seems reasonable that the compensation should continue until the 22 July 1815, the time of his departure from England, and not to cease on the 3 July when the Convention with England was signed. A quarter salary to be added for the expence [sic] of returning. Insurance of money carried out in the Neptune ought to be allowed, as was done in the case of that taken out for Mr Adams. Stores for Messrs. Gallatin & Bayard in the Neptune These Stores, to the amount of nearly 5000 dollars were provided by Mr. Harrison the Navy Agent, and as he alleged, on the authority of the Secretary of the Navy, Mr Jones; the Minister having nothing to do with the transaction. In this view of the subject, it is evidently proper, that if they be charged at all, it should be only to an amount which they must have expended in providing stores for themselves in the ordinary Way. Travelling expences--On this subject I find by referring to Mr. J. Q. Adams acct. while Minister at the Hague, that his expences were allowed in going to London & returning; his Salary going on. These expences amd. to 932 dollars.

73!