duties. The only provisions which can have any bearing upon this subject are the fol lowing: —
But, admitting for a moment that this is essentially an executive power, the question arises, does it belong to the President by virtue of the clause which declares that the The Executive power shall be vested in a Presi dent of the United States of America. . . He shall executive power shall be vested in him? nominate, and by and with the advice and consent The question naturally leads one to the con of the Senate, shall appoint ambassadors, other pub sideration of the two leading and opposite lic ministers and consuls, judges of the Supreme Court, and all other officers of the United States constructions which have been given to this clause. It has been contended by some whose appointments are not herein otherwise pro vided for, and which shall be established by law. commentators on constitutional law that the But the Congress may, by law, vest the appointment language employed is to be considered as of such inferior officers as they think proper in the a general grant of power to the Executive President alone, in the courts of law, or in the heads of departments. . . The President shall have power Department, under which every function to fill up all vacancies that may happen during the which may properly be considered execu recess of the Senate, by granting commissions which tive in its nature and essence is included, shall expire at the end of their next session. unless expressly denied or lodged in the The most plausible argument which has other departments. In opposition to this been presented by the advocates of the view it is asserted that the clause in ques President's right to remove, is that the power tion confers no power whatever, but that it of removal, as well as the power of appoint merely creates, or establishes, the executive ment, is essentially executive in its nature, branch of the Government, leaving its powers that inasmuch as all executive powers are" and duties to be denned by subsequent pro vested in the President, this is necessarily visions. Of these two constructions the included among them, and that the partici latter appears to be the correct one. Those pation of the Senate in the appointing power powers which the President may exercise is an exception to the general principle, and are specifically enumerated and defined in the Constitution; and it is a rule of con ought to be strictly construed. This doc trine was advocated with great ability and struction, recognized by all legal authorities, force by Mr. Madison, in the Congress of 1789, that where general language is employed to and is therefore entitled to great respect and create an office, and afterwards, in the same consideration, as having been the opinion of connection, the powers which shall attach to that office are specifically enumerated, the a profound statesman and jurist. The doc trine assumes that the power of removal particular words control those of a general is essentially an executive function. There nature, and the officer has those powers does not appear to be any reason to warrant which are contained in the specific enumer this assumption; nor does it follow that the ation, and no others. There can be no other simple authority to displace an officer is of object in expressly declaring what shall be such a peculiar nature that it may not be the powers or the attributes of an office, exercised with equal propriety by the other than to limit its jurisdiction and to prevent branches of the Government. There is noth the exercise of non-enumerated powers. If ing in the act itself which makes it a purely all executive functions are derived from a general grant, a subsequent specific enumer ministerial or executive function. On the con trary, it involves the exercise of a discretion ation must be deemed not only unnecessary, which does not belong to ministerial officers; but superfluous. It appears reasonable to and therefore it would appear to partake believe that, if the framers of the Constitu more of a judicial than of an executive tion had intended the President to exercise an absolute control over all the officers of character.
