Power of the President to Appoint Ministers and Consuls During a Recess of the Senate
[post–6 May 1822]
Power of the President to appoint publick ministers & Consuls, in the recess of the Senate.1
The place of a foreign Minister or Consul is not an Office in the constitutional sense of the term.
- 1. It is not created by the Constitution.
- 2. It is not created by a law authorized by the Constitution,
- 3. It cannot, as an office, be created by the mere appointment for it, made by the President & Senate, who are to fill, not create offices. These must be “established by law,” & therefore by Congress only.
- 4. On the supposition even that the appointment could create an office, the office would expire with the expiration of the appointment, and every new appointment would create a new office, not fill an old one. A law reviving an expired law is a new law.
The place of a foreign minister or Consul is to be viewed, as created by the Law of Nations: to which the U.S. as an Independent nation is a party; and as always open for the proper functionaries, when sent by the constituted authority of one nation, and received by that of another. The Constitution in providing for the appointment of such functionaries, presupposes this mode of intercourse, as a branch of the Law of Nations.
The question to be decided is what are the cases in which the President can make appointments without the concurrence of the Senate; and it turns on the construction of the power “to fill up all vacancies which may happen during the recess of the Senate.”
The term all embraces both foreign and municipal cases: and in examining the power in the foreign, however failing in exact analogy to the municipal, it is not improper to notice the extent of the power in the municipal.
If the text of the Constitution be taken literally no municipal officer could be appointed by the President alone, to a vacancy not originating in the recess of the Senate. It appears however, that under the sanction of the maxim, qui hæret in litera, hæret in cortice2 and of the argumentum ab inconvenienti,3 the power has been understood to extend, in cases of necessity or urgency, to vacancies, happening to exist, in the recess of the Senate, though not coming into existence in the recess. In the case, for example, of an appointment to a vacancy by the President & Senate, of a person dead at the time, but not known to be so till after the adjournment and dispersion of the Senate, it has been deemed within the reason of the constitutional provision, that the vacancy should be filled by the President alone; the object of the provision being to prevent a failure in the execution of the laws, which without such a scope to the power, must very inconveniently happen, more especially in so extensive a country. Other cases of like urgency may occur; such as an appointment by the President & Senate rendered abortive by a refusal to accept it.
If it be admissible at all to make the power of the President without the Senate, applicable to vacancies happening unavoidably to exist, tho’ not to originate, in the recess of the Senate, and which the publick good requires to be filled in the recess; the reasons are far more cogent for considering the sole power of the President as applicable to the appointment of foreign functionaries; inasmuch as the occasions demanding such appointments may not o⟨n⟩ly be far more important, but on the further consideration, that unlike appointments under the municipal law, the calls for them may depend on circumstances altogether under foreign controul, and sometimes on the most improbable & sudden emergencies; and requiring therefore that a competent authority to meet them should be always in existence. It would be a hard imputation on the Fram⟨e⟩rs & Ratifiers of the Constitution, that whilst providing for casualties of inferior magnitude, they should have intended to exclude from the provision, the means usually employed in obviating a threatened war; in putting an end to its calamities; in conciliating the friendship or neutrality of powerful nations, or even in seizing a favorable moment for commercial or other arrangements material to the public interest. And it would surely be a hard rule of construction, that would give to the text of the constitution an operation so injurious, in preference to a construction that would avoid it, and not be more liberal than would be applied to a remedial Statute. Nor ought the remark to be omitted that by rejecting such a construction this important function unlike some others, would be excluded altogether from our political System, there being no pretension to it in any ⟨o⟩ther department of the General Government or in any department of the State Govts. To regard the power of appointing the highest Functionaries employed in foreign missions, tho’ a specific & substantive provision in the Constitution, as incidental merely, in any case, to a subordinate power, that of a provisional negociation by the President alone, would be a more strained construction of the text than that here given to it.
The view which has been taken of the subject overrules the distinction between missions to foreign Courts, to which there had before been appointments, and to which there had not been. Not to speak of diplomatic appointments destined not for Stations at foreign Courts, but for special negociations, no matter where, and to which the distinction would be inapplicable, it can not bear a rational or practical test, in the cases to which it has been applied. An appointment to a foreign Court, at one time, unlike an appointment to a municipal Office always requiring it, is no evidence of a need for the appointment at another time; whilst an appointment where there had been none before, may in the recess of the Senate, be of the greatest urgency. The distinction becomes almost ludicrous when it is asked for what length of time the circumstance of a former appointment is to have the effect assigned to it on the power of the President. Can it be seriously alledged that after the interval of a Century, & the political changes incident to such a lapse of time, the original appointment is to authorize a new one, without the concurrence of the Senate; whilst a like appointment to a new Court, or even a new Nation however immediately called for, is barred by the circumstance that no previous appointments to it had taken place. The case of diplomatic missions belongs to the Law of Nations, and the principles & usages on which that is founded are entitled to a certain influence in expounding the provisions of the Constitution which have relation to such Missions. The distinction between Courts to which there had, and to which there had not been previous missions, is believed to be recorded in none of the oracular works on international law, and to be unknown to the practice of Governments, where no question was involved as to the de facto establishment of a Government.
With this exposition, the practice of the Government of the U. States has corresponded,4 and with every sanction of reason & public expediency. If in any particular instance the power has been misused, which it is not meant to suggest, that could not invalidate either its legitimacy or its general utility, any more than any other power would be invalidated, by a like fault in the use of it.
Ms (DLC). In JM’s hand. Undated; conjectural date assigned based on the evidence in n.1. On the verso of the last page, in an unidentified hand: “Note: It appears that Mr. Wirt had given officially the same construction to the term ‘happen’ tho’ not known to Mr. M.”
1. This issue was first raised in July 1813, when JM was under attack for making recess appointments to a peace commission that was to treat with Great Britain under the mediation of Russia (see JM to Monroe, 6 May 1822, and n. 3). The revival of this question in May 1822 may have provoked JM to write this formal answer to his critics and those of the president, James Monroe. There is no evidence the paper was ever published or even shared, but echoes of it appear in a letter to Edward Coles, 15 Oct. 1834 (NjP: Coles Papers). The editors have chosen to publish it here because JM’s penmanship in this document resembles the clear and vigorous style of the 1820s, rather than his cramped and labored writing of the 1830s.
2. Qui haeret in litera, haeret in cortice: who clings to the letter, clings to the bark, i.e., in interpreting a legal instrument or law, one should not confine oneself to the literal meaning alone but search for the spirit and intention of the maker or lawgiver.
3. Argumentum ab inconvenienti: “an argument that emphasizes the harmful consequences of failing to follow the position advocated” (Black’s Law Dictionary [9th ed.], 122).
4. Here JM first wrote then crossed out: “from its commencement to the latest date, thro’ the whole series of Executive magistrates.”