Appointments Clause

Last updated

The Appointments Clause of the United States Constitution empowers the President of the United States to nominate and, with the advice and consent (confirmation) of the United States Senate, appoint public officials. [1] Although the Senate must confirm certain principal officers (including ambassadors, Cabinet secretaries, and federal judges), Congress may by law invest the appointment of "inferior" officers to the President alone, or to courts of law or heads of departments.

Contents

Text

The Appointments Clause appears at Article II, Section 2, Clause 2 and provides:

... and [the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the 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.

Appointments Clause aspects

Nomination

The President has plenary power to nominate [2] : ¶5  political appointees, and the Senate's role is only advisory to the nomination, because the President is not bound to appoint his own nominee even with their advice. As Gouverneur Morris stated in the Constitutional Convention, "As the President was to nominate, there would be responsibility, and as the Senate was to concur, there would be security". [3]

The Appointments Clause confers plenary power to the President to nominate, and confers plenary power to the Senate to reject or confirm a nominee, through its advice and consent provision. As with other separation of powers provisions in the Constitution, the wording here seeks to ensure accountability and preempt tyranny. [2] Alexander Hamilton defended the use of a public confirmation of officers in Federalist No. 77, where he commented "a conclave in which cabal and intrigue will have their full scope. ... [T]he desire of mutual gratification will beget a scandalous bartering of votes and bargaining for places." [2] : ¶12  This separation of powers between the President and Senate is also present in the (immediately preceding) Treaty Clause of the Constitution, which gives international treaty-making power to the President, but attaches to it the proviso of the Senate's advice and consent.

Several framers of the U.S. Constitution explained that the required role of the Senate is to advise the President after the nomination has been made by the President. [4] [5] Roger Sherman believed that advice before nomination could still be helpful. [6] Likewise, President George Washington took the position that pre-nomination advice was allowable but not mandatory. [7] The notion that pre-nomination advice is optional has developed into the unification of the "advice" portion of the power with the "consent" portion, although several Presidents have consulted informally with Senators over nominations and treaties.

The actual motion adopted by the Senate when exercising the power is "to advise and consent", which shows how initial advice on nominations and treaties is not a formal power exercised by the Senate. [8] [9] On November 21, 2013, the Senate changed its rules regarding the number of votes needed to end debate on a presidential nomination and bring it to a vote. Before that date, a minority of senators could engage in a filibuster and block a vote on a nomination unless three-fifths of senators voted to end debate. Under the new rules, a simple majority is all that is needed to end debate. The only exception was for nominations to the Supreme Court of the United States, which could still be blocked from going to a vote by a filibuster, until the Senate rules were again changed on April 6, 2017 during Senate debate on the nomination of Neil Gorsuch to the Supreme Court. [10]

Congress itself may not exercise the appointment power; its functions are limited to the Senate's role in advice and consent, and to deciding whether to vest a direct appointment power over a given office in the President, a head of department, or the courts of law. The framers of the U.S. Constitution were particularly concerned that Congress might seek to exercise the appointment power and fill offices with their supporters, to the derogation of the President's control over the executive branch. The Appointments Clause thus functions as a restraint on Congress and as an important structural element in the separation of powers. [11] Attempts by Congress to circumvent the Appointments Clause, either by making appointments directly, or through devices such as "unilaterally appointing an incumbent to a new and distinct office" under the guise of legislating new duties for an existing office", have been rebuffed by the courts. [11]

Appointment of inferior officers

The Appointments Clause distinguishes between officers of the United States who must be appointed with the advice and consent of the Senate; and those who may be specified by acts of Congress, some of whom may be appointed with the advice and consent of the Senate, but whose appointment Congress may place instead in the President alone, in the courts of law, or in the heads of departments. [11] This last group are commonly referred to as "inferior officers".

An earlier proposed draft of the Appointments Clause would have given the President a broader power to "appoint officers in all cases not otherwise provided for by this Constitution", but some delegates of the Philadelphia Constitutional Convention worried that this language would permit the President to create offices as well as to fill them, a classic case of institutional corruption. The requirement that the President can appoint inferior officers only when Congress has "by Law vest[ed]" that power in the President sought to preclude that possibility. [11]

One chief question recurs under the "by Law" language: Who are "inferior Officers", not subject to the requirement of advice and consent; and (2) what constitutes a "Department", when Congress seeks to place the appointment power away from the President? As an initial matter, most government employees are not officers and thus are not subject to the Appointments Clause. In Buckley v. Valeo , the Supreme Court held that only those appointees "exercising significant authority pursuant to the laws of the United States" are "Officers of the United States", and hence it is only those who exercise such "significant authority" who must be appointed by a mechanism set forth in the Appointments Clause. The Framers did not define the line between principal officers and inferior officers, and the Supreme Court has been content to approach the analysis on a case-by-case basis rather than through a definitive test.

The Court listed in Morrison v. Olson (1988) certain factors as hallmarks of "inferior Officer" status, such as removability by a higher executive branch official other than the President, and limitations on the officer's duties, jurisdiction, and tenure. In Edmond v. United States (1997) the Court stated that "'inferior Officers' are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate." Among those officers recognized as "inferior" are district court clerks, federal supervisors of elections, the Watergate Special Prosecutor, and an Independent Counsel appointed under the Ethics in Government Act of 1978. [11] In Lucia v. SEC , 585 U.S. 237 (2018), the Court held that administrative law judges are inferior officers within the meaning of the Appointments Clause of the United States Constitution.

Appointments by heads of departments

Another chief question is, what constitutes a "Department", when Congress seeks to place the appointment power away from the President? The phrase "Heads of Departments" has not been precisely defined by the Supreme Court. On the one hand, judicial interpretations of the phrase refer to the heads of departments that are within the executive branch, or according to Buckley v. Valeo "at least have some connection with that branch". Under this view, the heads of all agencies and departments exercising executive power under the President would seem to qualify as "Heads of Departments". The Court interpreted in Freytag v. Commissioner of Internal Revenue (1991) "Heads of Departments" to refer "to executive divisions like the Cabinet-level departments". The use of the phrase "like the Cabinet-level departments" could mean that, in addition to the Cabinet departments, other entities within the executive branch that are sufficiently analogous to the Cabinet departments may qualify as "Departments" for purposes of the Appointments Clause.

On the other hand, the Freytag decision itself seemed unclear what it meant by the phrase "like the Cabinet-level departments", and certainly stepped back from any bright-line test. The Freytag decision sought to harmonize its analysis with the interpretation given the different term "executive Departments" in the Opinion Clause (which has been interpreted to refer only to Cabinet departments) and with earlier cases that suggested that only the Cabinet Secretaries qualified as "Heads of Departments". Ultimately, the Freytag decision seems to have reserved the question whether the heads of non-Cabinet executive-branch agencies could be deemed to be "Heads of Departments" for purposes of the Appointments Clause. Perhaps[ speculation? ] the phrase "like the Cabinet-level departments" was included in Freytag as an indication that the Court would not necessarily be inflexible about requiring Cabinet status in future cases. If that is so, then "Heads of Departments" would appear to include (as Justice Antonin Scalia reasons in his concurrence in Freytag) the heads of the Cabinet Departments and also the heads of "all independent executive establishments". [11]

From 1999 to 2008, a change in the statute governing the United States Patent and Trademark Office (USPTO) permitted a number of judges of the Board of Patent Appeals and Interferences and the Trademark Trial and Appeal Board to be appointed by the USPTO Director. This arrangement was challenged as unconstitutional under the Appointments Clause because the appointing party was not the head of the department. [12] In order to avoid the crisis that would result from new challenges to many BPAI and TTAB decisions made in that period, Congress passed a 2008 amendment to the statute which specifies that the Secretary of Commerce is responsible for such appointments, and permitting the Secretary to retroactively appoint those persons named by the USPTO Director.

Relevant federal court cases

Appointment

Removal

Jurisdiction stripping

See also

Related Research Articles

<span class="mw-page-title-main">Article Two of the United States Constitution</span> Portion of the US Constitution regarding the executive branch

Article Two of the United States Constitution establishes the executive branch of the federal government, which carries out and enforces federal laws. Article Two vests the power of the executive branch in the office of the president of the United States, lays out the procedures for electing and removing the president, and establishes the president's powers and responsibilities.

<span class="mw-page-title-main">Federal government of the United States</span> National government of the United States

The federal government of the United States is the common government of the United States, a federal republic located primarily in North America, comprising 50 states, five major self-governing territories, several island possessions, and the federal district of Washington, D.C., where the majority of the federal government is based.

In the United States, a recess appointment is an appointment by the president of a federal official when the U.S. Senate is in recess. Under the U.S. Constitution's Appointments Clause, the president is empowered to nominate, and with the advice and consent (confirmation) of the Senate, make appointments to high-level policy-making positions in federal departments, agencies, boards, and commissions, as well as to the federal judiciary. A recess appointment under Article II, Section 2, Clause 3 of the Constitution is an alternative method of appointing officials that allows the temporary filling of offices during periods when the Senate is not in session. It was anticipated that the Senate would be away for months at a time, so the ability to fill vacancies in important positions when the Senate is in recess and unavailable to provide advice and consent was deemed essential to maintain government function, as described by Alexander Hamilton in No. 67 of The Federalist Papers.

In law, a person is acting in a position if they are not serving in the position on a permanent basis. This may be the case if the position has not yet been formally created, the person is only occupying the position on an interim basis, the person does not have a mandate, or if the person meant to execute the role is incompetent or incapacitated.

<span class="mw-page-title-main">Separation of powers under the United States Constitution</span>

Separation of powers is a political doctrine originating in the writings of Charles de Secondat, Baron de Montesquieu in The Spirit of the Laws, in which he argued for a constitutional government with three separate branches, each of which would have defined authority to check the powers of the others. This philosophy heavily influenced the United States Constitution, according to which the Legislative, Executive, and Judicial branches of the United States government are kept distinct in order to prevent abuse of power. The American form of separation of powers is associated with a system of checks and balances.

<span class="mw-page-title-main">Commission on Appointments</span> Constitutional body of the Congress of the Philippines

The Commission on Appointments is a constitutional body which confirms or rejects certain political appointments made by the President of the Philippines. The current commission was created by the 1987 Constitution.

Advice and consent is an English phrase frequently used in enacting formulae of bills and in other legal or constitutional contexts. It describes either of two situations: where a weak executive branch of a government enacts something previously approved of by the legislative branch or where the legislative branch concurs and approves something previously enacted by a strong executive branch.

<i>Federalist No. 76</i> Federalist Paper by Alexander Hamilton

Federalist No. 76, written by Alexander Hamilton, was published on April 1, 1788. The Federalist Papers are a series of eighty-five essays written to urge the ratification of the United States Constitution. These letters were written by Alexander Hamilton, James Madison, and John Jay under the name of Publius in the late 1780s. This paper discusses the arrangement of the power of appointment and the system of checks and balances. The title is "The Appointing Power of the Executive", and is the tenth in a series of 11 essays discussing the powers and limitations of the Executive branch. There are three options for entrusting power: a single individual, a select congregation, or an individual with the unanimity of the assembly. Hamilton supported bestowing the president with the nominating power but the ratifying power would be granted to the senate in order to have a process with the least bias.

Humphrey's Executor v. United States, 295 U.S. 602 (1935), was a Supreme Court of the United States case decided regarding whether the United States President has the power to remove executive officials of a quasi-legislative or quasi-judicial administrative body for reasons other than what is allowed by Congress. The Court held that the President did not have this power. However, Humphrey's has been distinguished by Seila Law LLC v. Consumer Financial Protection Bureau. In Seila, Chief Justice John Roberts described Humphrey's as holding that Congress may occasionally create independent agencies with removal only for cause if such agencies share the characteristics of the FTC in 1935.

The Saxbe fix, or salary rollback, is a mechanism by which the president of the United States, in appointing a current or former member of the United States Congress whose elected term has not yet expired, can avoid the restriction of the United States Constitution's Ineligibility Clause. That clause prohibits the president from appointing a current or former member of Congress to a civil office position that was created, or to a civil office position for which the pay or benefits were increased, during the term for which that member was elected until the term has expired. The rollback, first implemented by an Act of Congress in 1909, reverts the emoluments of the office to the amount they were when that member began his or her elected term.

In the history of the United States, there have been approximately 32 unsuccessful recess appointments to United States federal courts. 22 individuals have been appointed to a United States federal court through a recess appointment who were thereafter rejected by the United States Senate when their name was formally submitted in nomination, either by a vote rejecting the nominee, or by the failure of the Senate to act on the nomination. These individuals served as federal judges, having full authority to hold office and issue rulings, until their rejection by the Senate. Five individuals were appointed but resigned either before the Senate voted on their nomination, or before a formal nomination was even submitted. Another five individuals were appointed but never assumed the office.

<span class="mw-page-title-main">Powers of the United States Congress</span>

Powers of the United States Congress are implemented by the United States Constitution, defined by rulings of the Supreme Court, and by its own efforts and by other factors such as history and custom. It is the chief legislative body of the United States. Some powers are explicitly defined by the Constitution and are called enumerated powers; others have been assumed to exist and are called implied powers.

<span class="mw-page-title-main">Federal Vacancies Reform Act of 1998</span> 1998 United States law

The Federal Vacancies Reform Act of 1998 is a United States federal statute establishing the procedure for filling vacancies in an appointed office of an executive agency of the government before the appointment of a permanent replacement.

National Labor Relations Board v. Noel Canning, 573 U.S. 513 (2014), was a United States Supreme Court case in which the Court unanimously ruled that the President of the United States cannot use his authority under the Recess Appointment Clause of the United States Constitution to appoint public officials unless the United States Senate is in recess and not able to transact Senate business. The Court held that the clause allows the president to make appointments during both intra-session and inter-session recesses but only if the recess is of sufficient length, and if the Senate is actually unavailable for deliberation, thereby limiting future recess appointments. The Court also ruled that any office vacancy can be filled during the recess, regardless of when it arose. The case arose out of President Barack Obama's appointments of Sharon Block, Richard Griffin, and Terence Flynn to the National Labor Relations Board and Richard Cordray as the director of the Consumer Financial Protection Bureau.

An officer of the United States is a functionary of the executive or judicial branches of the federal government of the United States to whom is delegated some part of the country's sovereign power. The term officer of the United States is not a title, but a term of classification for a certain type of official.

Freytag v. Commissioner of Internal Revenue, 501 U.S. 868 (1991), is a United States federal court case in which the Supreme Court of the United States decided the characteristics of inferior officers of the United States for the purposes of the Appointments Clause.

Weiss v. United States, 510 U.S. 163 (1994), is a Supreme Court of the United States case which held that commissioned military officers, who are appointed by the president of the United States by and with the advice and consent of the United States Senate, may be assigned to act as military judges without the need to be confirmed a second time by the Senate.

Edmond v. United States, 520 U.S. 651 (1997), was a decision by the Supreme Court of the United States in which it held that members Coast Guard Court of Criminal Appeals were "inferior officers" under the Appointments Clause. The court also sought out to define "inferior officers", and generally held that inferior officers were those whose decisions could be reviewed by, and could be removed without cause by, a principal officer who is appointed by the President and confirmed by the Senate.

United States v. Arthrex, Inc., 594 U.S. ___ (2021), was a United States Supreme Court case related to the Appointments Clause of the United States Constitution as it related to patent judges on the Patent Trial and Appeal Board (PTAB). In a complex decision, the Court ruled that these judges were considered "principal officers" under the Appointments Clause, normally subject to appointment through the US President and the US Senate, but to remedy the matter, the Court ruled that the constitutional issue is resolved by allowing the PTAB decisions to be subject to review by the appropriately-appointed Director of the Patent Office.

Ortiz v. United States, 585 U.S. ___ (2018), was a United States Supreme Court case regarding the nature of the United States Court of Appeals for the Armed Forces (USCAAF) in relationship to Article III Courts. The Court determined that it had jurisdiction to rule on appeals from the USCAAF, even though that court was created by Congress via Article I of the United States Constitution and is not an Article III court. The case was centered on the United States Constitution's separation of powers doctrine. The Court declared the Appointments Clause does not impose a prohibition on an officer of the United States from serving in two roles simultaneously. Rather, the clause only concerns itself with the method of appointment.

References

  1. ↑ Article II, Section 2, Clause 2
  2. 1 2 3 McGinnis, John O. "Essays on Article II: Appointments Clause". The Heritage Guide to the Constitution. The Heritage Foundation. Archived from the original on August 22, 2020. Retrieved February 10, 2018.
  3. ↑ Fallone, Edward A. (February 23, 2016). "The Senate Must Consider Supreme Court Nominations in Due Course". Marquette University Law School Faculty Blog. Retrieved February 20, 2023.
  4. ↑ Currie, David (1997). The Constitution in Congress: The Federalist Period, 1789–1801. University of Chicago Press. p. 25. ISBN   978-0-226-13114-6. Archived from the original on May 6, 2016 – via Google Books. Madison, Jefferson, and Jay all advised Washington not to consult the Senate before making nominations.
  5. ↑ Hamilton, Alexander (1788). Federalist No. 76. Archived from the original on April 22, 2016. In the act of nomination his judgment alone will be exercised.
  6. ↑ Sherman, Roger (July 1789). "Letter to John Adams". The Founders' Constitution. Archived from the original on January 19, 2017. ... their advice may enable him to make such judicious appointments.
  7. ↑ "Nominations: A Historical Overview". United States Senate Historical Office. Archived from the original on April 7, 2019. In selecting nominees, Washington turned to his closest advisers and to members of Congress, but the president resolutely insisted that he alone would be responsible for the final selection. He shared a common view that the Senate's constitutionally mandated 'advice' was to come after the nomination was made.
  8. ↑ U.S. Senate Rule 30: "On the final question to advise and consent to the ratification in the form agreed to, the concurrence of two-thirds of the Senators present shall be necessary to determine it in the affirmative."
  9. ↑ U.S. Senate Rule 31: "the final question on every nomination shall be, 'Will the Senate advise and consent to this nomination?'"
  10. ↑ Davis, Christopher M.; Greene, Michael. "Presidential Appointee Positions Requiring Senate Confirmation and Committees Handling Nominations" (PDF). Congressional Research Service. Archived (PDF) from the original on November 11, 2016. Retrieved December 10, 2016.
  11. 1 2 3 4 5 6 Cox, Douglas. "The Heritage Guide to the Constitution: Inferior Officers". The Heritage Foundation. Archived from the original on July 24, 2017. Retrieved October 27, 2012.
  12. ↑ Translogic Technology, Inc. v. Dudas, U.S., No. 07-1303, 10/6/08.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.