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

• Author: Prakash, Saikrishna Bangalore
• Position: II. Five Theories of When an Appointment Vests D. Delivery through Conclusion, with Appendix and footnotes, p. 224-251

4. Delivery

   The delivery theory rests upon common law concepts applicable to deeds and related instruments and contends that without commission delivery, the President has not filled the office or made an officer. (152) The delivery theory has two rather different guises.

   In Marbury, Marshall supposed that the President had to complete the entire act of appointment without the aid of others, the theory being that the Constitution granted the appointment power to the President alone. (153) As Marshall put it, "appointment is the sole act of the President" (154) because under the Constitution the appointment is "to be made by the President personally." (155) Based on this belief, he ruled out delivery to the appointee because the President never personally delivered commissions. (156) Instead, he focused on delivery to the Secretary of State: "If then the act of livery be necessary to give validity to the commission, it has been delivered when executed and given to the secretary" (157) to the appointee. That is to say, if delivery mattered, delivery to the Secretary of State made the appointment.

   Jefferson and his defenders had a different delivery theory in mind, one where delivery to the putative appointee was crucial. In 1807, Jefferson wrote that for a "commission, a deed, a bond, delivery is essential to give validity. Until... the commission is delivered out of the hands of the Executive & his agents, it [the office] is not his [the potential appointee's] deed. [The President] may withhold or cancel it at pleasure...." (158) The point would stick with Jefferson, for in 1823 he continued to insist "if there is any principle of law never yet contradicted, it is that delivery is one of the essentials to the validity of a deed." (159) Even if signed and sealed, "as long as it remains in the hands of the party himself, it is in tier/[pending] only, it is not a deed, and can be made so only by its delivery." (160) Though Marbury and his fellow applicants rejected Jefferson's version of the delivery theory, the fact that they sought commissions and had never tried to assume office without them lent it some plausibility. One might suppose that they wanted commissions to remove all doubts that they had been appointed. But insecurity about their status may have arisen because they lacked commissions, an uncertainty that suggested the importance of delivery. (161)

   With the Jeffersonian delivery theory in mind, consider the hypothetical: The President nominates, the Senate consents, and the President signs and seals the commission for a potential federal marshal. There still is no appointment. Even after the President directs delivery and the commission is in transit, the appointment is not made until receipt by the would-be marshal. If the commission is lost and never found, the office is not vested. Another commission must be made out and actually delivered. In contrast to the sequence suggested by Secretary of State Jefferson in an early opinion to Washington (nomination, appointment, commissioning), (162) President Jefferson's 1807 delivery theory contemplates a different sequence: nomination, commissioning, and then appointment (via delivery of the commission to the appointee).

   The Jeffersonian delivery theory had some evidence to commend it. First, the statute requiring the Secretary of State to affix the seal suggested that even after a commission was made, an appointment was not complete. The law (which Marshall quoted in Marbury) provided that the Secretary had to "affix the said seal to all civil commissions, to officers of the United States, to be appointed by the President." (163) The provision, passed during the first session of the first Congress, could be read to suggest that appointment followed commissioning because the statute discussed individuals "to be appointed" after the seal was affixed to the commission.

   Second, the Constitution's text had similar hints, or so one of Jefferson's defenders argued. In April of 1801, within weeks of Jefferson's decision to treat the Adams appointments as nullities, a good Republican rose to Jefferson's defense with respect to the charge of "illegally withholding the commissions." (164) The partisan focused on the Recess Appointments Clause: 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." (165) Jefferson's defender argued that this language showed that recess appointments--filling up vacancies during the Senate's recess--were to be made by the act of "granting commissions." (166) What was true for recess appointments was true for appointments more generally, or so the defender insisted. A grant of a commission, the author claimed, meant delivery; anything short of delivery could not constitute "granting Commissions." While a commission was in the executive's hand, he could "stop short" and choose neither to grant it nor make the appointment. (167) Such a system of appointing made sense, said the writer, for information about a candidate's "[k]navery, partiality, or innocent mistake" might come to light after signing and sealing the commission, but prior to delivery. (168) Despite the fact that the Attorney General sent this defense to Jefferson, (169) no one in his administration made it at the time or thereafter.

   In 1833, John Marshall endorsed the delivery theory as applied to pardons. Writing for the Court, Marshall claimed in United States v. Wilson that a pardon became effective only upon delivery. "A pardon is a deed, to the validity of which delivery is essential...." (170) Marshall never commented on this apparent inconsistency with Marbury. Perhaps Marshall thought pardons and appointments were rather different, with only the former requiring delivery to the beneficiary. Or maybe he did not pause to consider what his claim about pardons suggested about his earlier, more famous opinion about appointments.

   Whatever the case may be, there is little evidence that many thought that delivery of a commission was essential to make an appointment. Certainly Jefferson's predecessors did not believe as much. As noted, Washington claimed to have appointed individuals prior to the making of any commission. (171) He also asserted that he had appointed via the commission itself, prior to any delivery. (172) Likewise, in the wake of the Richard Hunt court martial, all members of the Adams Cabinet concluded that an appointment could be made without issuing a commission, meaning that delivery could hardly be requisite. (173) President Adams had come to the same conclusion, claiming that a commission was evidence of the appointment and not the appointment itself. (174)

   There is also little evidence that President Jefferson thought that delivery was essential to an appointment. (175) As noted, Jefferson spoke of individuals being appointed prior to any commission being made out, much less delivered. (176) His commissions also discussed appointments as having been made by the commission and not by its delivery. (177) In adopting these conclusions, perhaps President Jefferson drew on his experience as Secretary of State. Maybe he also recalled what transpired in late 1789. Though Washington appointed Jefferson on September 26, 1789, Jefferson received his commission in late November, upon his return from France. (178) In sum, Jefferson's 1807 claim that delivery to the putative appointee was essential is belied by his actions as Secretary of State and President.

5. Acceptance

   Jefferson never argued that acceptance of the office was necessary to appoint. Marshall raised the issue sua sponte out of a sense that he should canvas all the arguments, especially since Madison had ignored the Court's order to explain why a writ of mandamus should not issue. (179)

   The acceptance theory posits that someone cannot be appointed to office against her will, meaning that the President (and other appointers) cannot unilaterally appoint to office. So even after the President nominates, the Senate consents, and a commission is made out and delivered, the potential officer may still refuse the office and prevent her appointment. Moreover, the acceptance theory does not require any commission, focusing instead on acceptance of the office. Consider the following: the President nominates, and after securing the Senate's consent, offers the office of Supreme Court Justice to a lawyer. Whether or not a commission has been made out or delivered is irrelevant to whether the President has appointed the lawyer. Offer and acceptance, though insufficient to satisfy the President's commission obligation, does make an appointment.

   There is much to be said for this theory. After all, theories that do not turn on acceptance contemplate that people are appointed even if they reject the office and never carry out any official functions. In such cases, competing theories that do not require acceptance envision an appointment followed by a quick resignation, when most people might conclude that the person never really was in office and hence was never appointed.

   Nevertheless Marshall rejected the acceptance theory. He claimed that because the appointment power rested with the President, he had to be able to exercise it unilaterally, without regard to acceptance by a putative officer. (180) He also noted when a person appointed "refuses to accept that office, the successor is nominated in the place" (181) of the person declining the office, implying that the person refusing the office had occupied it nonetheless. He also claimed that the salary of the officer "commences from his appointment, not from" any delivery of the commission or acceptance of the office. (182)

   Marshall was generally correct about early practice. As the Chief Justice claimed, people concluded that the President had appointed even when the persons so appointed declined the office. (183) Moreover...