Note 350 — Chapter XIII

The Constitution (Art. II. § 2) seems to contemplate ambassadors, other public ministers and consuls, and judges of the Supreme Court, as officers to exist under the Constitution, whether provision is or is not made by law for their appointment and functions. It is made the imperative duty of the President to nominate, and with the consent of the Senate to appoint them. Hence it has been supposed that the President can appoint a foreign minister without waiting to have his particular office regulated or established by law; and as the President conducts the foreign intercourse of the country, he could prescribe the duties of such a minister. In like manner, with the consent of the Senate, the President could appoint a judge of the Supreme Court, and would be bound to do so, although no act of Congress existed providing for the organization and duties of the Court. But as the President cannot distribute the judicial power, the Court, when so appointed, would have only the functions conferred by the Constitution, namely, original jurisdiction in certain enumerated cases.