The Appointment and Removal of William J. Marbury and When an Office Vests

Scholars have ignored the most important question in one of the most famousconstitutional law cases, obscuring the machinations that spawned the dispute. ThisArticle sheds light on the events that precipitated Marbury v. Madison and alsoexplains when an appointment vests. Thomas Jefferson famously refused to deliver acommission to William J. Marbury, causing the latter to seek a writ of mandamus fromthe Supreme Court. The received wisdom supposes that Jefferson’s refusal rested on thegrounds that Marbury had not been appointed a justice of the peace precisely because henever had received a commission. In fact, Jefferson’s delivery argument was a post-hocrationalization, having nothing to do with his actions in March of 1801. JohnAdams’s midnight appointments incensed Jefferson, leading the new President to treatall of the justice of the peace appointments as nullities. To Jefferson, the failure todeliver commissions to some of those appointees mattered not a whit. What seems tohave been far more significant is his sense that the justices of the peace served at hispleasure. Acting on this belief, he simultaneously removed them all and recess appointedmost of them, save for more than a dozen, including William J. Marbury.This Article also addresses whether William J. Marbury and the other midnight appointeeswho never received their commissions were nonetheless appointed, considering fivetheories of when an appointment vests: when the Senate consents; after consent butbefore commissioning; when commissioning occurs; with the delivery of a commission;and with acceptance of the office. In the course of considering these theories, the Articlediscloses the surprising fact that Thomas Jefferson, as Secretary of State, endorsed thesecond theory, namely that appointments vest before the act of commissioning. Moreover,well before Marbury v. Madison, the Adams Administration likewise concludedthat appointments could vest prior to any commission being issued or delivered. Despitethis convergence, the Article contends that none of the five theories is correct becauseeach reads the Constitution as enshrining a single answer regarding when an appointmentvests. There is no single answer. Rather an appointment vests whenever thePresident determines that it shall. The Constitution grants power to the President toappoint, never precisely specifying when or how an appointment vests. By not specifyingwhen or how appointment is made, the Constitution leaves it to the President todecide the manner in which he appoints. This conclusion derives from a general principleof constitutional law: When the Constitution grants power to an entity but doesnot specify the precise means by which it will be exercised, the grantee may decide themeans of exercising it.