Note 297 — ARTICLE II (continued 2)

"They [the clauses of the Constitution] seem to contemplate three distinct operations: 1st. The nomination. This is the sole act of the President, and is completely voluntary. 2d. 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. 3d. 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.'" Marbury v. Madison, 1 Cr. 137, 155-156 (1803). Marshall's statement that the appointment "is the act of the President," conflicts with the more generally held, and sensible view that when an appointment is made with its consent, the Senate shares the appointing power. 1 Kent's Comm. 310; 2 Story Comm. § 1539; Ex parte Hennen, 13 Pet. 225, 259 (1839).