Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/407

 CH. XXXVII.] the case. They seem to contemplate three distinct operations: (1.) The nomination. This is the sole act of the president, and is completely voluntary. (2.) The appointment. This is also the act of the president; and is also a voluntary act, though it can only be performed by and with the advice and consent of the senate. (3.) The commission. To grant a commission to a person appointed, might perhaps be deemed a duty enjoined by the constitution. "He shall," says that instrument, "commission all the officers of the United States." 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 authorizes 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