The President's Duty to Commission Officers

Abstract

The Constitution contains an anti-unitary executive provision in the Commission Clause, which says that the President "shall Commission all the Officers of the United States." The import of the Commission Clause is that the President lacks discretion to refuse to provide a commission to an Officer of the United States who has been properly appointed under statutory law and under the Appointments Clause-including by an official other than the President. Because it would be futile for the Constitution to require the President to commission someone whom the President could remove at will, the Commission Clause demonstrates that the Constitution contemplates cases in which the President will lack removal authority. Indeed, the purpose of the Commission Clause is to secure presidential fidelity to congressional choices about the structure of government. The Article supports this conclusion with analysis of the text of the Commission Clause; its place within the Constitution's structure, in particular its relationship to the Take Care Clause; its drafting history; the functional significance of commissions in the early Republic; and judicial precedent, in particular Marbury v. Madison. In fact, in Marbury, Chief Justice Marshall suggests outright that, if an officer is properly appointed under statutory law and under the Appointments Clause, then for the President "to issue a commission would be apparently a duty distinct from the appointment, the performance of which, perhaps, could not legally be refused." In addition to refuting the unitary executive theory, the Commission Clause has implications for understanding presidential duties under the Take Care Clause and congressional prerogatives under the Necessary and Proper Clause. The Commission Clause, as interpreted by Marbury, demonstrates that Congress can lawfully enlist the assistance of judicial supervision in enforcing at least some presidential duties. At the same time, the content of the President's obligation to take care that the laws be faithfully executed must be filled in by the content of laws that generate presidential obligations.

Keywords: unitary executive theory, removal power, presidential power, separation of powers, Commission Clause, Marbury v. Madison, Marbury, Officer of the United States, Take Care Clause, Necessary and Proper Clause, presidential duty, commission