400 WRIGHT— POWER TO ESTABLISH 



commission (except tHreat of impeachment) and without the com- 

 mission no person is an " officer " with legal powers.^" 



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 appoint- 

 ment of the officers " of the militia even when called forth into na- 

 tional service.^" 



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." ^^ 



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." ^^ It may be added that the President exer- 

 cises such an inherent power in appointing personal agents for con- 

 ducting diplomatic intercourse without congressional authorization 

 and without consent of the Senate, a practice which the Senate has 

 often objected to but never with success. -° 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. 



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



IS Ibid., II, sec. 2, cl. 2. 



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



'^^ Infra, sees. 238-240. 



