th the advice and consent of the
Senate, with this exception, that Congress "may by law vest 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."
But this bill, if these are to be considered inferior officers within
the meaning of the Constitution, does not provide for their appointment
by the President alone, or by the courts of law, or by the heads of
Departments, but vests the appointment in one subordinate executive
officer, subject to the approval of another subordinate executive
officer. So that, if we put this question and fix the character of this
military appointee either way, this provision of the bill is equally
opposed to the Constitution.

Take the case of a soldier or officer appointed to perform the office
of judge in one of these States, and, as such, to administer the
proper laws of the State. Where is the authority to be found in the
Constitution for vesting in a military or an executive officer strict
judicial functions to be exercised under State law? It has been again
and again decided by the Supreme Court of the United States that acts
of Congress which have attempted to vest _executive_ powers in the
_judicial_ courts or judges of the United States are not warranted by
the Constitution. If Congress can not clothe _a judge_ with merely
_executive_ duties, how can they clothe _an officer_ or _soldier_ of the
Army with _judicial_ duties over citizens of the United States who are
not in the military or naval service? So, too, it has been repeatedly
decided that Congress can not require a State officer, executive or
judicial, to perform any duty enjoined upon him by a law of the United
States. How, then, can Congress confer power upon an executive officer
of the United States to perform such duties in a State? If Congress
could not vest in a judge of one of these States any judicial authority
under the United States by direct enactment, how can it accomplish the
same thing indirectly, by removing the State judge and putting an
officer of the United States in his place?

To me these considerations are conclusive of the unconstitutionality
of this part of the bill now before me, and I earnestly commend their
consideration to the deliberate judgment of Congress.

Within a period less than a year the legislation of Congress has
attempted to strip the executive department of the Government of some
of its essential po