[The President] shall Commission all the Officers of the United States.
At the time of the Framing, every officer of the English government was an officer of the crown, commissioned in the king’s name. In feudal Britain, the sovereign enjoyed an absolute prerogative to create and bestow fiefs, packages of rights and responsibilities that included titles, land grants, and offices. The grant of a fief would often be evidenced by a gift, which might be a banner, a sword, or a more formal charter. As the feudal system faded, the authority to create offices and to commission officers remained an attribute of monarchical power. The king took care to commission the royal governors of the colonies, listing their duties and their powers. But the king commissioned many more officers, prompting the complaint in the Declaration of Independence, “He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.” Many Americans considered the English system inherently flawed, consolidating too much power with the executive and thus begetting cronyism and abuse.
In the years following independence, the new state and national governments experimented with decentralized methods of selecting and empowering officials. The Articles of Confederation granted Congress the power to appoint civil officers and split the power to appoint military officers between Congress and the state legislatures. Regardless of the mode of selection, the Confederation Congress was to commission “all officers whatever in the service of the United States.” The states experimented with numerous other mechanisms.
The delegates at the Constitutional Convention vigorously debated the appointment power, eventually arriving at the system described in Article II, Section 2. But the Commissions Clause was never subject to debate; the Framers apparently accepted that granting commissions was a natural duty for the executive. When the Committee of Detail issued the first draft of the Constitution, the clause was already in its present form. The one person vested with the executive power (the president) would commission every officer of the national government.
The Framers structured the appointment power as follows. Congress creates the office (except for those solely under the president in his exercise of the foreign affairs power). The president “appoints” (actually, nominates) principal officers, but Congress may by law vest the appointment of inferior officers in other persons or departments but not in Congress itself. The Senate approves the nominee, and the president completes the appointment by commissioning the officer. Delivery of the commission is not necessary to effectuate the appointment. Marbury v. Madison (1803).
Where the president has either constitutional or statutory authority to appoint (nominate) an officer, and the Senate has approved the nomination, the president may still decide not to commission the officer, which effectually kills the appointment. On the other hand, when an inferior officer has been appointed by someone other than the president, the president’s duty is then ministerial: he is obliged to commission that person once the nomination has been approved.
While Justice Robert H. Jackson once called this duty “trifling,” Chief Justice John Marshall pointed out in Marbury that granting a commission is the distinct act, done in the name of the president, which empowers an officer. Marshall also noted the important evidentiary value of commissions to officers in asserting their authority to citizens and in courts of law.
The placement of the Commissions Clause is also instructive. Rather than being nestled in the discussion on appointments in Article II, Section 2, the clause is attached with a comma to the Take Care Clause. The two together contemplate that the president will supervise others in their enforcement of the law. Solicitor General James Beck, successfully defending the president’s removal power in Myers v. United States (1926), argued that “the commission of every high federal official comes to him not from Congress, which created the office, but from the President.” Although the executive power is vested in the president alone, he necessarily exercises this power through government officers, and thus the clause focuses accountability for the execution of the laws in the unitary executive. Beck argued that the president can only “take Care that the Laws be faithfully executed” if he is responsible for (and can remove) the officers who exercise his executive authority.
Robert G. Natelson, The Original Meaning of the Constitution’s “Executive Vesting Clause”—Evidence from Eighteenth-Century Drafting Practice, 31 WHITTIER L. REV. 1 (2009)
Peter L. Strauss, The Constitution Under Clinton: The President and Choices Not to Enforce, 63 L. & Contemp. Probs. 107 (2000)
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
Myers v. United States, 272 U.S. 52 (1926)
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)
Buckley v. Valeo, 424 U.S. 1 (1976)