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such as diplomatic and consular offices, consular courts for exercising American jurisdiction abroad or foreign jurisdiction in the United States, and international courts, councils, and administrative unions. Doubtless in many cases Congress would have to create and provide for the necessary "offices" under the United States before such treaty-established organs could become effective, but such a need of congressional cooperation is not a legal limitation upon the treaty power. Legally the treaty power seems to be limited in its power to create and organize instrumentalities not defined by the Constitution itself, only by the condition that the instrumentality be bona fide of international interest and by the conditions stated above applicable to the power of Congress.10

227. The Power of the President to Create Offices and Agencies.

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The President and the courts are not specifically endowed with power to create new instrumentalities for exercising national powers. In the Neagle case, the Supreme Court went far toward recognizing a power in the President to delegate executive authority to persons not occupying a congressionally established "office." This, however, should probably be interpreted no farther than a recognition that the President may create subordinate agencies, not strictly "offices" necessary for performing executive functions. The President's authorization of personal "agents" for conducting diplomatic negotiations and representing the United States in international conferences is justified under the same inherent power. Legislative bodies and courts seem to have a similar inherent power to create subordinate positions by merely making appointments thereto. In most cases the nature and necessity of such subordinate positions has been established by practice and tradition, the issue being raised rather as to the inherent power to make appointments thereto, than as to the inherent power to create the position.12

In addition to such essential subordinate positions, the President, as representative authority of the nation, has recognized and applied 10 In re Ross, 140 U. S. 453.

11 In re Neagle, 135 U. S. 1; Willoughby, Constitutional Law, 1155.
12 Infra, sec. 228 (3).

international law to determine the grades of "ambassadors, public ministers and consuls" to be sent by the United States. These offices being established by the Constitution itself, congressional action is not necessary.13 As Commander-in-Chief, the President has exercised much discretion in organizing the Army and Navy. He may provide administrative agencies and courts for governing territory under military occupation, even after conclusion of war and annexation of the territory, but he cannot vest such courts with prize jurisdiction.15 This power is, of course, superseded by acts of Congress organizing the territory.

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228. The Appointment of Officers and Agents.

Quite different is the situation with reference to the filling of such offices or agencies once created. It is often said that the appointing power is essentially executive in character, and doubtless constitutional understandings have tended toward presidential dominance in this field, but as a matter of federal constitutional law, it seems that the President has no more inherent power in this regard than do the other departments. All power to make appointments seems to be derivable (1) from express delegation by the Constitution, (2) from act of Congress, (3) from inherent powers of the departments under the principle of separation of powers. Strictly speaking, the making of an appointment involves three processes: nomination, appointment and commissioning. The first and last have for the most part been vested in the President alone, and undoubtedly the sole power of initiation and absolute veto upon appointments thus implied makes his will paramount in appointments. It should be noticed that the courts have held that the granting of a commission is a ministerial duty after the appointment has been made but they admit there is no power to compel the President to sign a

13 Infra, sec. 236.

14 Cross v. Harrison, 16 How. 164; Santiago v. Nogueras, 214 U. S. 260. 15 Jecker v. Montgomery, 13 How. 498, but Congress may retroactively confer such jurisdiction on presidential courts. The Grapeshot, 9 Wall. 129.

commission (except threat of impeachment) and without the commission no person is an "officer" with legal powers.16

1. The Constitution provides that 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." "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." To the states is "reserved. . . respectively, the appointment of the officers" of the militia even when called forth into national service.17

2. "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." 18

3. Finally, an inherent power of appointment exists in each of the departments as an implication of the doctrine of separation of powers. "If any one of the departments," says Goodnow, "is to be expected to be independent of the others, it must have the power to appoint its subordinates. The legislature may thus appoint all its subordinate officers, while courts may appoint such officers as criers and others who are necessary in order that the courts may perform their duties properly." 19 It may be added that the President exercises such an inherent power in appointing personal agents for conducting diplomatic intercourse without congressional authorization and without consent of the Senate, a practice which the Senate has often objected to but never with success.20 It may also be noticed that in the National Government Congress has in fact conferred power on the courts to appoint such essential subordinates as clerks,

16 Marbury v. Madison, I Cranch 137. If a commission has been signed and is in the hands of an officer, other than the President, its delivery may be mandamused, ibid.

17 U. S. Constitution, II, sec. 2, cl. 2, 3; I, sec. 8, cl. 16.

18 Ibid., II, sec. 2, cl. 2.

19 Goodnow, op. cit., pp. 37-38.

20 Infra, secs. 238-240.

criers, reporters, etc., under the constitutional clause referred to, but doubtless in the absence of such statutes the courts could make such appointments as they have done in the states.

229. Limitations upon the Appointing Power.

Apparently the only constitutional limitation upon the appointing power is that which provides: 21

"No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States which shall have been created or the emoluments whereof shall have been increased during such time; and no person holding any office under the United States shall be a member of either House during his continuance in office."

It should be noticed, however, that the incompatibility of congressional membership with the holding of an "office" does not apply to service as an agent. Senators have often been sent on special diplomatic missions, under presidential appointment. The occupancy of a judicial office is not incompatible with the holding of another office. John Jay and Oliver Ellsworth were each sent on diplomatic missions by appointment of the President, consented to by the Senate, while justices of the Supreme Court, and on other occasions justices have been appointed by the President to serve on courts of arbitration.22 The Senate held that Gallatin's position as Secretary of the Treasury was incompatible with his appointment as commissioner to conclude the Peace Treaty of Ghent and forced his withdrawal from the former position. The grounds of this incompatibility, however, were never precisely stated and do not seem to be sustained by analogy or subsequent practice. Thus while Civil Governor of the Philippines, Mr. Taft was appointed on a special mission to the Pope, and while Secretary of State, Mr. Lansing was appointed upon the mission to conclude the Peace Treaty of Versailles. In neither of these cases, however, was the appointment to a regular office, nor was it submitted to the Senate.23 21 U. S. Constitution, I, sec. 6, cl. 2.

22 Corwin, op. cit., p. 66; supra, sec. 176.

23 Moore, Digest, 4: 447. For facsimile reproduction of Mr. Lansing's commission, see Lansing, The Peace Negotiations, 1921, p. 28.

230. Powers of Removing and of Directing Officers and Agents.

In the United States Government, though not in the states, the removal power seems to belong inherently to the Chief Executive. This was decided in the debate of the first Congress on a bill for organizing the Department of State and has been consistently admitted since, with exception of the period of the tenure of office acts, 18671887. These acts, originating in political hostility to President Johnson, were virtually held to have been unconstitutional by the Supreme Court after their repeal.24

Through the power of removal the President has the power to direct administrative officials with no practical restraint, as was illustrated by President Jackson's action in the bank controversy. By successive removals of Secretaries of the Treasury, he was able to direct the removal of government deposits from the Second United States Bank, although by law discretion in this matter belonged to the Secretary.25

'I think," wrote Attorney General Cushing in 1855, "the general rule to be . . . that the head of department is subject to the direction of the President. (This was said in relation to duties imposed by statute upon a head of a department.) I hold that no head of department can lawfully perform an official act against the will of the President and that will is, by the Constitution, to govern the performance of all such acts." 26

As Commander-in-Chief, the President has complete power of directing the military and naval services of the national government.27

24 Parsons v. U. S., 167 U. S. 324. The power to remove has usually been considered an implication of the power to appoint. (Ex parte Hennen, 13 Pet. 230, 1839; U. S. v. Perkins, 116 U. S. 143; Shurtleff v. U. S., 189 U. S. 311; President Wilson's veto of National Budget Bill, June 4, 1920.) This derivation of the power, however, would seem to leave Congress discretion to determine the authority to remove "inferior officers for whose appointment they may provide, a discretion it has never successfully exercised as to executive and administrative officers and which is inconsistent with the recognized practice whereby the President alone removes, even when the appointing power is the President acting with advice and consent of the Senate. See Powell, National Municipal Review, 9: 538-545, and supra, secs. 52, 53.

25 Goodnow, op. cit., pp. 77-82.

26 Cushing, Att. Gen., 7 Op. 453, 470.

27 Ex parte Milligan, 4 Wall. 2, supra, sec. 221.

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