An interesting paper from Sai Prakash that offers answers to the main question in Marbury that was never really answered: when did his commission vest?
The most important question in the most famous constitutional law case has been largely ignored, obscuring the political machinations that generated the case. This article recounts the actual events that precipitated Marbury v. Madison and also explains when an appointment vests. Thomas Jefferson famously refused to deliver a commission to William J. Marbury, supposedly on the grounds that Marbury had not been appointed a justice of the peace precisely because he never had received a commission. In fact, Jefferson’s delivery argument was a post-hoc rationalization, having nothing to do with his actual actions in March of 1801. Adams’s midnight appointments outraged Jefferson, leading the new President to treat all of the justice of the peace appointments as nullities, even those who had received a commission. In other words, the failure to deliver commissions mattered not a whit to Jefferson. This article also addresses whether William J. Marbury and the others who never received their commissions were nonetheless appointed, considering five theories of when an appointment vests: when the Senate consents; after consent but before commissioning; when commissioning occurs; with the delivery of a commission; and with acceptance of the office. In the course of laying out these theories, the article discloses the surprising fact that prior to becoming President, Jefferson endorsed the second theory, namely that appointments vest before the act of commissioning. The article also reveals that, well before Marbury v. Madison, the Adams Administration also concluded that appointments could vest prior to any commission being issued or delivered. Notwithstanding this surprising agreement between Secretary of State Jefferson and President John Adams, the article contends that none of the five theories is correct because each reads the Constitution as enshrining a single answer regarding when an appointment vests. There is no single answer. Rather an appointment vests whenever the President determines that it shall be complete. The Constitution grants power to the President to appoint, never precisely specifying when or how an appointment vests. By not specifying when or how appointment is made, the Constitution leaves it to the President to decide the manner in which he makes the appointment. This conclusion derives from a general principle of constitutional law: When the Constitution grants power to an entity but does not specify the precise means by which it will be exercised, the possessor of that power may decide the means of exercising it. Based on this principle and a copy of a commission granted to another justice of the peace on March 3, 1801, it is almost certain that John Adams had appointed William J. Marbury on that day. If we assume that all the justice of the peace commissions made out that day were identical (save for the name of the appointee), Adams appointed Marbury prior to leaving office because the text of Marbury’s commission would have indicated that Adams had appointed him.
Now why didn’t CJ Marshall just say that? The, he could have gotten around that entire pesky recusal issue because he frickin failed to deliver the commission.