[{"command":"add_css","data":[{"rel":"stylesheet","media":"all","href":"\/sites\/default\/files\/css\/css_veuEhhb1658wti0_ZAig66JOyixENU-N9zhjLQSLfOQ.css?delta=0\u0026language=en\u0026theme=heritage_theme\u0026include=eJwrTi1LzdNPzkksLq7Uy8tPSQUAPMsGtA"}]},{"command":"invoke","selector":null,"method":"openEssay","args":["10000090","\n\n\u003Carticle about=\u0022\/constitution\/articles\/2\/essays\/91\/appointments-clause\u0022 class=\u0022node node--type-constitution-essay node--promoted node--view-mode-embedded clearfix\u0022\u003E\n  \u003Ch1 class=\u0022title\u0022\u003E\u003Cspan\u003EAppointments Clause\u003C\/span\u003E\n\u003C\/h1\u003E\n\n      \u003Cdiv class=\u0022con-location\u0022\u003E\n      Article II, Section 2, Clause 2\n    \u003C\/div\u003E\n    \u003Cdiv class=\u0022con-essay-context\u0022\u003E\n      \n            \u003Cdiv\u003E\u003Cp\u003EThe 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....\u003C\/p\u003E\n\u003C\/div\u003E\n      \n    \u003C\/div\u003E\n      \n  \u003Cdiv class=\u0022con-essay-body\u0022\u003E\n    \n            \u003Cdiv\u003E\u003Cp\u003EThis clause contemplates three sequential acts for the appointment of principal officers\u2014the nomination of the president, the advice and consent of the Senate, and the appointment of the official by the president.\u003C\/p\u003E\n\n\u003Cp\u003EThe requirements of this part of Article II, Section 2, Clause 2, apply to principal officers, in contrast to inferior officers, whose appointments are addressed in the next part (Inferior Officers). Although the Senate must confirm principal officers, including ambassadors and Supreme Court justices, Congress may still require that any inferior officers whose office is \u201cestablished by law\u201d also be confirmed by the Senate.\u003C\/p\u003E\n\n\u003Cp\u003EThere are a number of possibilities why the Framers chose the Senate (rather than Congress as a whole, or nobody) as the body that must approve the nominations of principal officers. Before the Revolution, many in the colonies had insisted on a \u201cgovernor\u2019s council\u2019 to monitor and approve the royal governor\u2019s appointments, and some Framers may have seen the Senate as playing an analogous role. In addition, the small states designedly had proportionately greater power in the Senate, and could serve as a check on a president from a large state who might otherwise be able to make appointments of persons from his own state.\u003C\/p\u003E\n\n\u003Cp\u003EThe important questions for principal officers and their confirmation are, first, whether the president has plenary power of nomination or whether the Constitution limits this power by requiring the president to seek pre-nomination \u201cadvice;\u201d second, whether the president must nominate only those who meet qualifications set by Congress; and, third, whether the Senate has plenary power to reject nominees or whether that power is circumscribed by some standard.\u003C\/p\u003E\n\n\u003Cp\u003EBoth the debates among the Framers and subsequent practice confirm that the president has plenary power to nominate. He is not obliged to take advice from the Senate on the identity of those whom he will nominate. On its part, the Senate possesses the plenary authority to reject or confirm the nominee, although its weaker structural position means that it is likely to confirm most nominees, absent compelling reasons to reject them.\u003C\/p\u003E\n\n\u003Cp\u003EThe very grammar of the clause is telling: the act of nomination is separated from the act of appointment by a comma and a conjunction. Only the latter act is qualified by the phrase \u201cadvice and consent.\u201d Furthermore, it is not at all anomalous to use the word advice with respect to the action of the Senate in confirming an appointment. The Senate\u2019s consent is advisory because confirmation does not bind the president actually to appoint the confirmed nominee. Instead, after receiving the Senate\u2019s advice and consent, the president may deliberate again before appointing the nominee. After the president formally appoints, the appointee may, as was frequent in the early republic, then refuse the appointment, in which case the appointment is regarded as never having been made.\u003C\/p\u003E\n\n\u003Cp\u003EThe principal concern of the Framers regarding the Appointments Clause, as in many of the other separation of powers provisions of the Constitution, was to ensure accountability while avoiding tyranny. Hence, following the suggestion of Nathaniel Gorham of Massachusetts and the example of the Massachusetts constitution drafted by John Adams, the Framers gave the power of nomination to the president so that the initiative of choice would be the president\u2019s responsibility, but provided the check of advice and consent to forestall the possibility of abuse of this power. Gouverneur Morris described the advantages of this multistage process: \u201cAs the President was to nominate, there would be responsibility, and as the Senate was to concur, there would be security.\u201d\u003C\/p\u003E\n\n\u003Cp\u003E\u003Cem\u003EThe Federalist\u003C\/em\u003E similarly recognizes the power of nomination to be an exclusively presidential prerogative. In fact, in \u003Cem\u003EThe Federalist\u003C\/em\u003E No. 76, Alexander Hamilton answered critics who would have preferred the whole power of appointment to be lodged in the president by asserting that the assignment of the power of nomination to the president alone assures sufficient accountability:\u003C\/p\u003E\n\n\u003Cblockquote\u003E[I]t is easy to show that every advantage to be expected from such an arrangement would, in substance, be derived from the power of nomination which is proposed to be conferred upon him; while several disadvantages which might attend the absolute power of appointment in the hands of that officer would be avoided. In the act of nomination, his judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment.\u003C\/blockquote\u003E\n\n\u003Cp\u003EChief Justice John Marshall in \u003Cem\u003EMarbury v. Madison\u003C\/em\u003E (1803), Justice Joseph Story in his \u003Cem\u003ECommentaries on the Constitution of the United States\u003C\/em\u003E (1833), and the modern Supreme Court in \u003Cem\u003EEdmond v. United States\u003C\/em\u003E (1997) all confirm that understanding.\u003C\/p\u003E\n\n\u003Cp\u003ECongress establishes offices, and the president, at least in regard to principal officers, nominates office holders. Under the Necessary and Proper Clause (Article I, Section 8, Clause 18), Congress has often established qualifications for those who can serve in the offices it has created, thereby limiting the range of those the president can nominate. Andrew Jackson protested that such acts were an unconstitutional infringement of his appointing power, but Congress has continued the practice to this day. The Supreme Court has held that Congress may not provide itself with the power to make appointments, \u003Cem\u003EBuckley v. Valeo\u003C\/em\u003E (1976), but it is unclear how far Congress may go in setting qualifications for principal officers without contravening the Framers\u2019 interest in assuring the president\u2019s accountability for the initial choice. President James Monroe declared that Congress had no right to intrude upon the president\u2019s appointing power. In Myers v. United States (1926), Chief Justice William Howard Taft declared that the qualifications set by Congress may not \u201cso limit selection and so trench upon executive choice as to be in effect legislative designation.\u201d In \u003Cem\u003EPublic Citizen v. U.S. Department of Justice\u003C\/em\u003E (1989), Justice Anthony Kennedy, concurring, opined that the president\u2019s appointing power was exclusive, and that only the Incompatibility Clause (Article I, Section 6, Clause 2) limits the range of his choice.\u003C\/p\u003E\n\n\u003Cp\u003EThere are a number of possibilities. Perhaps Congress may set whatever limited standards it wants to. Or, it may be that it may not set standards that are too limited (such as limiting the nomination to one of three approved by the House). Perhaps the legislative branch may not impose any standards, for that would allow the House to intrude on the Senate\u2019s confirmation process. And, even if the Senate confirms one who does not meet the standards, it may be that that would be a political question unreviewable by the courts. The Court, however, has yet to make a definitive statement on the issue.\u003C\/p\u003E\n\n\u003Cp\u003EAnother related question is whether a new appointment is necessary if Congress expands the duties of an office after an appointment takes place. In \u003Ci\u003EWeiss v. United States\u003C\/i\u003E (1994), the Supreme Court held that military officers who served as judges in courts-martial did not need a separate act of appointment and Senate approval. The Court declared that serving as military judge was not \u201cso different\u201d from the duties of a military officer that a separate appointment was necessary. In fact, the Court went so far as to say that being a military judge was \u201cgermane\u201d to being a military officer. Nor could the Court find that Congress had authorized a new appointment.\u003C\/p\u003E\n\n\u003Cp\u003EClosely related to the Framers\u2019 interest in assuring accountability was their interest in avoiding an appointment that would be the result of secret deals. In defending the clause\u2019s structure of presidential nomination and public confirmation, Hamilton in \u003Ci\u003EThe Federalist\u003C\/i\u003E No. 77 contrasted it with the appointments process by a multimember council in his own state of New York. Such a council acting in secret would be \u201ca 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.\u201d Delegates to the Constitutional Convention had expressed similar concerns. If the Senate had a formal pre-nomination advisory role, the Senate leaders and the president might well be tempted to make a deal that would serve their parochial interests and then be insulated from all but pro forma scrutiny. Other contemporaneous commentary on the Appointments Clause repudiates any special constitutional pre-nomination role for the Senate. James Iredell, a leading proponent of ratification in North Carolina and subsequently a Supreme Court justice, observed at his state\u2019s ratifying convention: \u201cAs to offices, the Senate has no other influence but a restraint on improper appointments. The President proposes such a man for such an office. The Senate has to consider upon it. If they think him improper, the President must nominate another, whose appointment ultimately again depends upon the Senate.\u201d\u003C\/p\u003E\n\n\u003Cp\u003EThe practice of the first president and Senate supported the construction of the Appointments Clause that reserves the act of nomination exclusively to the president. In requesting confirmation of his first nominee, President Washington sent the Senate this message: \u201cI nominate William Short, Esquire, and request your advice on the propriety of appointing him.\u201d The Senate then notified the president of Short\u2019s confirmation, which showed that they too regarded \u201cadvice\u201d as a post-nomination rather than a pre-nomination function: \u201cResolved, that the President of the United States be informed, that the Senate advise and consent to his appointment of William Short Esquire.\u2009.\u2009.\u2009.\u201d The Senate has continued to use this formulation to the present day. Washington wrote in his diary that Thomas Jefferson and John Jay agreed with him that the Senate\u2019s powers \u201cextend no farther than to an approbation or disapprobation of the person nominated by the President, all the rest being Executive and vested in the President by the Constitution.\u201d Washington\u2019s construction of the Appointments Clause has been embraced by his successors. Some presidents have consulted with key Senators and a few with the Senate leadership, but they have done so out of comity or political prudence and never with the understanding that they were constitutionally obliged to do so. A law setting qualifications would not only invade the power of the president, it would also undermine the authority of the Senate as the sole authority to decide whether a principal officer should be confirmed.\u003C\/p\u003E\n\n\u003Cp\u003EThe other principal controversy arising from the Appointments Clause has concerned the authority of the Senate to reject nominees. The Senate has independent authority in that it may constitutionally refuse to confirm a nominee for any reason. While ideology and jurisprudential \u201cpoint of view\u201d were not among the kinds of concerns listed by the Framers as justifying the requirement of advice and consent, nothing in the text of the clause appears to limit the kind of considerations the Senate can take up. It is thus reasonable to infer that the Framers located the process of advice and consent in the Senate as a check to prevent the president from appointing people who have unsound principles as well as blemished characters. As the president has complete discretion in the use of his veto power, the Senate has complete and final discretion in whether to accept or approve a nomination.\u003C\/p\u003E\n\n\u003Cp\u003EGiven that the Senate was not to exercise choice itself, it appeared to Alexander Hamilton in \u003Cem\u003EThe Federalist\u003C\/em\u003E No. 76 that a nominee should be rejected only for \u201cspecial and strong reasons.\u201d The president\u2019s power of repeated nomination provides a check on the Senate\u2019s ability to reject a nominee on something less than an articulable weighty reason. In fact, Hamilton argued that if the Senate fails to make that case and rejects the nominee for a pretextual reason, the president would generally be in a position to find a second candidate without these putative defects who generally shares the president\u2019s point of view. It is rare, however, for a president to renominate a person to a position once the Senate has declined to accept the nomination.\u003C\/p\u003E\n\n\u003Cp\u003EThe president does possess an advantage in the unitary nature of the executive office as compared to the diffuse and variegated nature of the Senate\u2014even when it is controlled by the opposition party. The president is a single individual, whereas the Senate is a body composed of many individuals with a wide range of views, including members with views like those of the president. When the president has a substantial basis of party support in the Senate and thus a nucleus of probable supporters, he has leverage for confirmation. Thus, the image of a divided government as a government in any sense equally divided when it comes to an analysis of the Appointments Clause and the confirmation process is a fundamentally false image, as George Mason recognized at the Philadelphia convention: \u201cNotwithstanding the form of the proposition by which the appointment seemed to be divided between the Executive \u0026amp; Senate, the appointment was substantially vested in the former alone.\u201d Moreover, the president\u2019s advantage in the process is a considered feature of the Framers\u2019 design: they knew how to create a process by which the power of the executive and the Senate would be rendered more equal. Unlike the approval of treaties, it does not take a supermajority to approve a presidential nominee.\u003C\/p\u003E\n\n\u003Cp\u003EBecause the president has the initiative of choice in appointments to the executive branch and the judiciary, the views of his prospective appointees are more likely to become a presidential campaign issue than in senatorial campaigns. Since he possesses the greatest discretion, the political process fastens upon him the greatest accountability. However, when a substantial number of Senators assert that there are strong and compelling political reasons to reject a nominee (as opposed to rejecting one because of a flawed character), the Constitution\u2019s structure ensures a confirmation battle. As such, the Constitution contains mechanisms designed to contain conflict within the republican process in order to protect against the degeneration of the republic\u2019s original ideals and thus ensure the republic\u2019s stability. The Appointments Clause is a prime example of such a mechanism. It structures the confirmation process so that when two of the republic\u2019s national governing branches are in fundamental disagreement, there will be a struggle to persuade the people of the correctness of their respective positions. In the case of a struggle over constitutional interpretation as in a Supreme Court nomination, as has been more frequent in recent decades, the public will be forced to consider the first principles of the republic\u2014in this case, the role of the judiciary and the proper method of interpreting its governing document. Citizens will thus vicariously enjoy some measure of the experience of the framing of the Constitution, thus contributing to the republic\u2019s self-regeneration.\u003C\/p\u003E\n\u003C\/div\u003E\n      \n  \u003C\/div\u003E\n\n      \u003Cdiv class=\u0022con-essay-author\u0022\u003E\n      \u003Cdiv class=\u0022con-essay-author--media\u0022\u003E\n              \u003Cdiv class=\u0022con-essay-author--photo\u0022 style=\u0022background-image: url(\/sites\/default\/files\/John_McGinnis.jpg)\u0022\u003E\u003C\/div\u003E\n            \u003C\/div\u003E\n      \u003Cdiv class=\u0022con-essay-author--info\u0022\u003E\n              \u003Ch4 class=\u0022con-essay-author--name\u0022\u003E\n                      \u003Ca href=\u0022http:\/\/www.law.northwestern.edu\/faculty\/profiles\/JohnMcGinnis\/\u0022\u003EJohn McGinnis\u003C\/a\u003E\n                  \u003C\/h4\u003E\n                  \u003Cdiv class=\u0022con-essay-author--job\u0022\u003E\n         George C. Dix Professor in Constitutional Law, Northwestern University School of Law\n      \u003C\/div\u003E\n            \u003C\/div\u003E\n    \u003C\/div\u003E\n\n    \u003Cdiv class=\u0022con-essay-tabs\u0022\u003E\n      \u003Cul data-tabs class=\u0022tabs\u0022\u003E\n        \u003Cli class=\u0022button-more thirds\u0022\u003E\u003Ca data-tab href=\u0022#node-10000090-taba\u0022\u003EFurther Reading\u003C\/a\u003E\u003C\/li\u003E\n        \u003Cli class=\u0022button-more thirds\u0022\u003E\u003Ca data-tab href=\u0022#node-10000090-tabb\u0022\u003ECase Law\u003C\/a\u003E\u003C\/li\u003E\n        \u003Cli class=\u0022button-more thirds\u0022\u003E\u003Ca data-tab href=\u0022#node-10000090-tabc\u0022\u003ERelated Essays\u003C\/a\u003E\u003C\/li\u003E\n      \u003C\/ul\u003E\n\n      \u003Cdiv data-tabs-content\u003E\n        \u003Cdiv data-tabs-pane class=\u0022tabs-pane\u0022 id=\u0022node-10000090-taba\u0022\u003E\n          \n      \u003Cdiv\u003E\n              \u003Cdiv\u003E\u003Cp\u003EMichael Gerhardt, The Federal Appointments Process: A Constitutional and Historical Analysis (2000)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EJohn O. McGinnis, \u003Ci\u003EThe President, the Senate, the Constitution and the Confirmation Process: A Reply to Professors Strauss and Sunstein\u003C\/i\u003E, 71 Tex. L. Rev. 633 (1993)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EDavid A. Strauss \u0026amp; Cass R. Sunstein, \u003Ci\u003EThe Senate, the Constitution and the Confirmation Process\u003C\/i\u003E, 101 Yale L.J. 1491 (1993)\u003C\/p\u003E\n\u003C\/div\u003E\n          \u003C\/div\u003E\n  \n        \u003C\/div\u003E\n        \u003Cdiv data-tabs-pane class=\u0022tabs-pane\u0022 id=\u0022node-10000090-tabb\u0022\u003E\n          \n      \u003Cdiv\u003E\n              \u003Cdiv\u003E\u003Cp\u003EMarbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EMyers v. United States, 272 U.S. 52 (1926)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EBuckley v. Valeo, 424 U.S. 1 (1976)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EMorrison v. Olson, 487 U.S. 654 (1988)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EPublic Citizen v. U.S. Department of Justice, 491 U.S. 440 (1989)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EWeiss v. United States, 510 U.S. 163 (1994)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EEdmond v. United States, 520 U.S. 651 (1997)\u003C\/p\u003E\n\u003C\/div\u003E\n          \u003C\/div\u003E\n  \n        \u003C\/div\u003E\n        \u003Cdiv data-tabs-pane class=\u0022tabs-pane\u0022 id=\u0022node-10000090-tabc\u0022\u003E\n                      \u003Ca href=\u0022\/essay_controller\/10000028\u0022 class=\u0022use-ajax\u0022\u003EIncompatibility Clause\u003C\/a\u003E\n                      \u003Ca href=\u0022\/essay_controller\/10000058\u0022 class=\u0022use-ajax\u0022\u003ENecessary and Proper Clause\u003C\/a\u003E\n                      \u003Ca href=\u0022\/essay_controller\/10000091\u0022 class=\u0022use-ajax\u0022\u003EInferior Officers\u003C\/a\u003E\n                      \u003Ca href=\u0022\/essay_controller\/10000092\u0022 class=\u0022use-ajax\u0022\u003ERecess Appointments Clause\u003C\/a\u003E\n                      \u003Ca href=\u0022\/essay_controller\/10000098\u0022 class=\u0022use-ajax\u0022\u003ECommissions\u003C\/a\u003E\n                  \u003C\/div\u003E\n      \u003C\/div\u003E\n    \u003C\/div\u003E\n  \n\u003C\/article\u003E\n"]}]