1/9/2009

10 Comments

1. The acts of appointing to office, and commissioning the person appointed, can scarcely be considered as one and the same; since the power to perform them is given in two separate and distinct sections of the constitution. The distinction between the appointment and the commission will be rendered more apparent by adverting to that provision in the second section of the second article of the constitution, which authorises congress ‘to vest by law 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;’ thus contemplating cases where the law may direct the president to commission an officer appointed by the courts or by the heads of departments. In such a case, to issue a commission would be apparently a duty distinct from the appointment, the performance of which perhaps, could not legally be refused.

   Although that clause of the constitution which requires the president to commission all the officers of the United States, may never have been applied to officers appointed otherwise than by himself, yet it would be difficult to deny the legislative power to apply it to such cases. Of consequence the constitutional distinction between the appointment to an office and the commission of an officer who has been appointed, remains the same as if in practice the president had commissioned officers appointed by an authority other than his own.

   It follows too, from the existence of this distinction, that, if an appointment was to be evidenced by any public act other than the commission, the performance of such public act would create the officer; and if he was not removable at the will of the president, would either give him a right to his commission, or enable him to perform the duties without it.

   These observations are premised solely for the purpose of rendering more intelligible those which apply more directly to the particular case under consideration. This is an appointment made by the president, by and with the advice and consent of the senate, and is evidenced by no act but the commission itself. In such a case therefore the commission and the appointment seem inseparable; it being almost impossible to show an appointment otherwise than by proving the existence of a commission: still the commission is not necessarily the appointment; though conclusive evidence of it.

   But at what stage does it amount to this conclusive evidence?

   The answer to this question seems an obvious one. The appointment being the sole act of the president, must be completely evidenced, when it is shown that he has done every thing to be performed by him.

   Should the commission, instead of being evidence of an appointment, even be considered as constituting the appointment itself; still it would be made when the last act to be done by the president was performed, or, at furthest, when the commission was complete.

   The last act to be done by the president, is the signature of the commission. He has then acted on the advice and consent of the senate to his own nomination. The time for deliberation has then passed. He has decided. His judgment, on the advice and consent of the senate concurring with his nomination, has been made, and the officer is appointed. This appointment is evidenced by an open, unequivocal act; and being the last act required from the person making it, necessarily excludes the idea of its being, so far as it respects the appointment, an inchoate and incomplete transaction.

   Some point of time must be taken when the power of the executive over an officer, not removable at his will, must cease. That point of time must be when the constitutional power of appointment has been exercised. And this power has been exercised when the last act, required from the person possessing the power, has been performed. This last act is the signature of the commission. This idea seems to have prevailed with the legislature, when the act passed converting the department [5 U.S. 137, 158]   of foreign affairs into the department of state. By that act it is enacted, that the secretary of state shall keep the seal of the United States, ‘and shall make out and record, and shall affix the said seal to all civil commissions to officers of the United States, to be appointed by the president:’ ‘provided that the said seal shall not be affixed to any commission, before the same shall have been signed by the president of the United States; nor to any other instrument or act, without the special warrant of the president therefor.’

   The signature is a warrant for affixing the great seal to the commission; and the great seal is only to be affixed to an instrument which is complete. It attests, by an act supposed to be of public notoriety, the verity of the presidential signature.

   It is never to be affixed till the commission is signed, because the signature, which gives force and effect to the commission, is conclusive evidence that the appointment is made.

   The commission being signed, the subsequent duty of the secretary of state is prescribed by law, and not to be guided by the will of the president. He is to affix the seal of the United States to the commission, and is to record it.

   This is not a proceeding which may be varied, if the judgment of the executive shall suggest one more eligible, but is a precise course accurately marked out by law, and is to be strictly pursued. It is the duty of the secretary of state to conform to the law, and in this he is an officer of the United States, bound to obey the laws. He acts, in this respect, as has been very properly stated at the bar, under the authority of law, and not by the instructions of the president. It is a ministerial act which the law enjoins on a particular officer for a particular purpose.

   If it should be supposed, that the solemnity of affixing the seal, is necessary not only to the validity of the commission, but even to the completion of an appointment, still when the seal is affixed the appointment is made, and [5 U.S. 137, 159]   the commission is valid. No other solemnity is required by law; no other act is to be performed on the part of government. All that the executive can do to invest the person with his office, is done; and unless the appointment be then made, the executive cannot make one without the co- operation of others.

   After searching anxiously for the principles on which a contrary opinion may be supported, none have been found which appear of sufficient force to maintain the opposite doctrine.

   Marbury v. Madison.

   Comment by aphrael — 1/9/2009 @ 3:47 pm

2. If this is a win for Burris, why would the Chicago Tribune be “Court rebuffs Burris on Senate signature”? Stunning, isn’t it? Ol’ Sam must be very pleased.

   I have read countless defenses by the Trib and other MSM dinosaurs that “context” must be provided and accepted as straight news. This time? They choose to play it straight down the Joe Friday middle, with no context.

   The Court directly challenged Reid to show where, in the Senate rules and traditions, a SoS signature had ever been a requirement for seating. I don’t know about you, but it isn’t every day that I see a state court take on the U.S. Senate so plainly.

   How many layers vetted this mess?

   Comment by Ed — 1/9/2009 @ 4:48 pm

3. Ed: I read the opinion. It seemed to be saying a couple of things:

   (a) Illinois law doesn’t require the Secretary of State to affix the seal to a commission in the case of a Senate appointment, so go away.

   (b) the Senate’s insistence that an affixed seal is required is not supported by its rules, and even if it were, it would not be binding on Illinois.

   The bottom line at the moment is: the Illinois Supreme Court refuses to order the Secretary of State to affix the seal and says the Senate should seat him anyway, but has no power to order the Senate to do anything. The Senate refuses to seat Burris without a seal on the commission and has no power to order the Illinois Secretary of State to do anything.

   Either the Illinois Secretary of State changes his mind, the Senate changes its mind, or it goes to the US Supreme Court. Which, I think, everyone except the US Supreme Court would be happy with.

   Comment by aphrael — 1/9/2009 @ 6:21 pm

4. Just so long as it goes on past January 20. Tee-hee.

   Comment by nk — 1/9/2009 @ 6:35 pm

5. Politico reports that White signed 3/5ths of a certification.

   Comment by nk — 1/9/2009 @ 6:44 pm

6. That’s cold.

   Comment by carlitos — 1/9/2009 @ 7:53 pm

7. Aphrael – if the Trib had provided the context of Reid having said he would give weight to what the IL supreme Court said, the headline would have been that Burris will likely be seated.

   Instead, the rag ignores the reversals and retreats of Reid, BHO, and the Dem leadership, and simply pronounces a defeat for Burris.

   The reality is that this decision makes it a virtual certainty that Burris will be seated in the very near future. Reid and company have nothing upon which to hang their hats now. THIS, is the story.

   Comment by Ed — 1/10/2009 @ 12:17 am

8. That’s cold.

   I can get colder. Whadda is White doing dissing the first one of only four black people ever to get elected statewide in Illinois? Just how far down on his knees is he to his Massa Ritchie?

   Comment by nk — 1/10/2009 @ 12:53 pm

9. NK, I denounce you as a Racist!

   Comment by PCD — 1/10/2009 @ 1:06 pm

10. Seriously, there was not one bad thing said about Roland Burris before this. And his first seat, Comptroller, he took away from a Republican who is now a Seventh Circuit Judge. That’s a clean office. This is an intramural fight between the Daleys and Blagojevich, with White going to the Daley side along with Reid, while Juggy wishes people would remember he’s really from Hawaii.

    Comment by nk — 1/10/2009 @ 1:19 pm

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