age, but merely that it is he and no one else who has the
power to commission them, which he may do at his discretion. The sealing
and delivery of the commission is, on the other hand, by the doctrine of
Marbury _v._ Madison, in the case both of appointees by the President
and Senate and by the President alone, a purely ministerial act which
has been lodged by statute with the Secretary of State and the
performance of which may be compelled by mandamus unless the appointee
has been in the meantime validly removed.[302] By an opinion of the
Attorney General many years later, however, the President, even after he
has signed a commission, still has a _locus poenitentiae_ and may
withhold it; nor is the appointee in office till he has his
commission.[303] This is probably the correct doctrine.[304]

Clause 3. 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.

RECESS APPOINTMENTS

Setting out from the proposition that the very nature of the executive
power requires that it shall always be "in capacity for action,"
Attorneys General early came to interpret "happen" to mean "happen to
exist," and long continued practice securely establishes this
construction. It results that whenever a vacancy may have occurred in
the first instance, or for whatever reason, if it still continues after
the Senate has ceased to sit and so cannot be consulted, the President
may fill it in the way described.[305] But a Senate "recess" does not
include holiday or temporary adjournments,[306] while by an act of
Congress, if the vacancy existed when the Senate was in session, the _ad
interim_ appointee may receive no salary until he has been confirmed by
the Senate.[307]

_AD INTERIM_ DESIGNATIONS

To be distinguished from the power to make recess appointments is the
power of the President to make temporary or _ad interim_ designations of
officials to perform the duties of other absent officials. Usually such
a situation is provided for in advance by a statute which designates the
inferior officer who is to act in place of his immediate superior. But
in the lack of such provision both theory and practice concede the
President the power to make the designation.[308]

THE REMOVAL POWER; THE MYERS CASE

Save for the provision which it makes for a power of impeachment of
"civil officers of the United States,"