The appointment and removal of William J. Marbury and when an office vests.

• Author: Prakash, Saikrishna Bangalore
• Position: Introduction through II. Five Theories of When an Appointment Vests C. Commissioning, p. 199-223

INTRODUCTION I. A STRATEGY OF REMOVAL AND REAPPOINTMENT II. FIVE THEORIES OF WHEN AN APPOINTMENT VESTS A. By the Advice and Consent of the Senate B. After the Senate Consents, But Before Commissioning C. Commissioning D. Delivery E. Acceptance III. THE MAKING OF APPOINTMENTS UNDER THE CONSTITUTION A. The Discretionary Theory of Appointment B. The Discretionary Theory Applied to Other Provisions C. Restrictions on the Rule of Appointer Discretion D. The Functions of Commissions E. Congress, the Senate, and the Vesting of Appointments F. Reconsidering the Theories of Appointment IV. THE MARBURY APPOINTMENT REVISITED CONCLUSION APPENDIX A ABSTRACT

Scholars have ignored the most important question in one of the most famous constitutional law cases, obscuring the machinations that spawned the dispute. This Article sheds light on the events that precipitated Marbury v. Madison and also explains when an appointment vests. Thomas Jefferson famously refused to deliver a commission to William J. Marbury, causing the latter to seek a writ of mandamus from the Supreme Court. The received wisdom supposes that Jefferson's refusal rested on the grounds that Marbury had not been appointed a justice of the peace precisely because he never had received a commission. In fact, Jefferson's delivery argument was a post-hoc rationalization, having nothing to do with his actions in March of 1801. John Adams's midnight appointments incensed Jefferson, leading the new President to treat all of the justice of the peace appointments as nullities. To Jefferson, the failure to deliver commissions to some of those appointees mattered not a whit. What seems to have been far more significant is his sense that the justices of the peace served at his pleasure. Acting on this belief, he simultaneously removed them all and recess-appointed most of them, save for more than a dozen, including William J. Marbury. This Article also addresses whether William J. Marbury and the other midnight appointees who never received their commissions were nonetheless appointed, considering five theories of when an appointment vests: when the Senate consents; after consent but before commissioning; when commissioning occurs; with the delivery of a commission; and with acceptance of the office. In the course of considering these theories, the Article discloses the surprising fact that Thomas Jefferson, as Secretary of State, endorsed the second theory, namely that appointments vest before the act of commissioning. Moreover, well before Marbury v. Madison, the Adams Administration likewise concluded that appointments could vest prior to any commission being issued or delivered. Despite this convergence, the Article contends that none of the five theories is correct because each reads the Constitution as enshrining a single answer regarding when an appointment vests. There is no single answer. Rather an appointment vests whenever the President determines that it shall. The Constitution grants power to the President to appoint, never precisely specifying when or how an appointment vests. By not specifying when or how appointment is made, the Constitution leaves it to the President to decide the manner in which he appoints. This conclusion derives from a general principle of constitutional law: When the Constitution grants power to an entity but does not specify the precise means by which it will be exercised, the grantee may decide the means of exercising it.

INTRODUCTION

Scholars have dissected Marbury v. Madison ad nauseum. They have trained their energies on the broader battle between the Republicans and Federalists, what mistakes Chief Justice John Marshall made in his opinion, whether leaving the jurisdictional issue for last was deviously brilliant, and whether he concocted judicial review. (1)

Missing from these works is any sustained analysis of the question foremost in the minds of William Marbury and John Marshall: Had John Adams appointed Marbury prior to leaving office? (2) If he had, Jefferson and Secretary of State Madison arguably violated Marbury's rights by denying him a commission, for one of the President's Article II duties is to "commission all Officers of the United States." (3) Or at least that is the prism through which the plaintiffs saw the dispute. After all, they sought copies of their commission, documents that confirmed their previous appointments. (4) Certainly that is the way the Chief Justice must have seen the case. Why else discuss this issue before ultimately deciding that the Court lacked jurisdiction? In particular, why would the Chief Justice go on at great length, insisting that the commission was evidence that Adams had already appointed Marbury; that if the commission was the appointment, the President's signature vested the office; that if the signature was insufficient, that sealing the commission made the officer; and that if delivery was required, delivery to the Secretary of State was sufficient? Jefferson surely understood the question's import, for Marshall had branded the President a scofflaw. (5) Marshall's claims "stuck in Jefferson's craw for the rest of his life." (6)

When an appointment vests matters. For the appointee, it marks the point when she may function in office and draw a salary. It is especially important when the office has a durable tenure, such as good behavior tenure. (7) The question of when an appointment vests matters to the President, too. Even as to officers serving at pleasure, removal can be risky. The list of chief executives condemned, impeached, or challenged in court for removals includes George Washington, (8) Andrew Jackson, (9) Andrew Johnson, (10) Franklin Roosevelt, (11) and George W. Bush. (12) Finally, when an office vests matters to the public because it marks when a private citizen can act as an official--prosecute, create rules, or adjudicate cases.

When an appointment vests also matters because it is part of a broader question of when events of constitutional significance occur. For instance, when does a pardon vest? Does it vest when the President signs the pardon, upon notification, upon delivery, or some other time? Or consider an officer's removal. Is the officer ousted when the President decides as much, when the public is advised, or when the officer receives notice? The answer to when an appointment vests might shed light on these related issues of constitutional timing.

The failure of scholars to consider the appointment question also has left the true story of William Marbury's appointment buried. First, a glimpse of the untold story: upon assuming office in 1801, President Jefferson said he would treat all of the midnight justice of the peace appointments as if they were nullities. (13) This stance meant that Jefferson cared little about whether the appointees had received commissions. (14) Underscoring his view that the midnight appointments were to be treated as nullities, Jefferson appointed some of these appointees to the identical office, (15) an action clearly signifying that they were not otherwise in office except by virtue of his appointment.

Only in 1807, years later, did he harp on the failure to deliver certain commissions, (16) Given his apparent failure to espouse the delivery theory in 1801, Jefferson's belated claim that John Adams had not appointed Marbury because the latter had received no commission was a post hoc justification. Somewhat ironically, our hyperfocus on the Marbury opinion, with its emphasis on the plaintiffs' demands for commissions, has left hidden the story of Jefferson's nullification strategy and his initial view that the commissions and the appointments were beside the point. (17)

If Jefferson lacked a delivery theory of appointment in 1801, what justified his treating all of the midnight appointments as nullities, as if they had never been made? While he was never crystal clear, it nonetheless seems reasonably certain that President Jefferson acted on the belief that he could remove the justices of the peace. He noted that most of the midnight appointees served at his pleasure. (18) As to these non-Article III appointees, Jefferson believed that he should treat them as nullities because he thought it utterly outrageous that Adams had appointed them during the twenty-first hour of the last day of his Presidency. (19) Somewhat ironically, the means by which he removed all the justices of the peace was a global commission, one that recess-appointed some of the non-Article III midnight appointees. The implication was that all justices of the peace had been terminated, with only some given new (and shorter) terms of office. (20)

The dearth of scholarly inquiry also has left concealed a good deal of historical evidence on an issue Chief Justice Marshall struggled with in Marbury: the question of when an appointment vests. Prior to Marbury, it was common to consider an appointment complete even when no commission had been issued. Commissions were hardly irrelevant; they were good and perhaps conclusive evidence of appointment. But appointments could and did vest independent of the signing, sealing, or delivery of commissions.

Evidence for this proposition comes from the practices of Jefferson's predecessors. Both George Washington and John Adams appointed to office without first issuing a commission. Moreover, in 1799, Adams and his cabinet concluded that the President had appointed officers to a court martial even though no one had signed, sealed, or delivered commissions. (21)

Persuasive evidence favoring some aspects of Marshall's opinion in Marbury also comes from an improbable source: Thomas Jefferson. As Secretary of State, Jefferson opined to George Washington that appointment had to precede commissioning, meaning that commission delivery was unnecessary for an appointment to vest. (22) Moreover, the first Secretary of State issued commissions to individuals already appointed to office. (23) Later, as President...