The Appointments Clause

The Constitution gave the power of appointing federal officers, including ambassadors, judges, and other officials, to the President along with the advice and consent of the Senate. The President nominates the officials and the nominations move to the Senate for the confirmation process.

Who Can the President Appoint?

Article II, Section 2, Clause 2 of the United States Constitution states:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he 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.

How Do Presidential Appointments Work?

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

The Constitution appears to distinguish three stages in appointments by the President with the advice and consent of the Senate. The first is the "nomination" of the candidate by the President alone; the second is the assent of the Senate to the candidate's "appointment;" and the third is the final appointment and commissioning of the appointee, by the President.¹

Senate Approval

The fact that the power of nomination belongs to the President alone prevents the Senate from attaching conditions to its approval of an appointment, such as it may do to its approval of a treaty. In the words of an early opinion of the Attorney General: "The Senate cannot originate an appointment. Its constitutional action is confined to the simple affirmation or rejection of the President's nominations, and such nominations fail whenever it rejects them. The Senate may suggest conditions and limitations to the President, but it cannot vary those submitted by him, for no appointment can be made except on his nomination, agreed to without qualifications or alteration."² This view is borne out by early opinion,³ as well as by the record of practice under the Constitution.

When Senate Consent Is Complete

Early in January 1931, the Senate requested President Hoover to return its resolution notifying him that it advised and consented to certain nominations to the Federal Power Commission. In support of its action, the Senate invoked a long-standing rule permitting a motion to reconsider a resolution confirming a nomination within "the next two days of actual executive session of the Senate" and the recall of the notification to the President of the confirmation. The nominees involved having meantime taken the oath of office and entered upon the discharge of their duties, the President responded with a refusal, saying: "I cannot admit the power in the Senate to encroach upon the executive functions by removal of a duly appointed executive officer under the guise of reconsideration of his nomination." The Senate thereupon voted to reconsider the nominations in question, again approving two of the nominees, but rejecting the third, against whom it instructed the District Attorney of the District of Columbia to institute quo warranto proceedings in the Supreme Court of the District. In United States v. Smith,⁴ the Supreme Court overruled the proceedings on the ground that the Senate had never before attempted to apply its rule in the case of an appointee who had already been installed in office on the faith of the Senate's initial consent and notification to the President. In 1939, President Roosevelt rejected a similar demand by the Senate, an action that went unchallenged.⁵

Commissioning Officers

The power to commission officers, as applied in practice, does not mean that the President is under constitutional obligation to commission those whose appointments have reached that stage, but merely that it is he and no one else who has the power to commission them, and that he may do so at his discretion. Under the doctrine of Marbury v. Madison, the sealing and delivery of the commission is a purely ministerial act which has been lodged by statute with the Secretary of State, and which may be compelled by mandamus unless the appointee has been in the meantime validly removed.⁶ By an opinion of the Attorney General many years later, however, the President, even after he has signed a commission, still has a locus poenitentiae and may withhold it; nor is the appointee in office till he has this commission.⁷ This is probably the correct doctrine.⁸

Who Is An "Officer" Under Article II?

The Appointments Clause separates principal officers from inferior ones and distinguishes both types of constitutional officers from non-officer government employees.⁹ In Buckley v. Valeo, the Court established that "any appointee exercising significant authority pursuant to the laws of the United States is an 'Officer of the United States.'"¹⁰ In Freytag v. Commissioner, the Court applied this standard to hold that special trial judges (STJs) were inferior officers rather than mere employees.¹¹ The government had argued in part that STJs were employees because, with respect to the challenged agency actions, STJs lacked "authority to enter a final decision."¹² The Court rejected this argument, saying that it "ignores the significance of the duties and discretion that special trial judges possess."¹³ The Court noted that the duties, salary, and means of appointment of STJs were established by statute, and that STJs did not operate on a "temporary, episodic basis."¹⁴ The Court also emphasized that STJs exercised "significant discretion" in carrying out a number of "important functions," including the ability to "take testimony, conduct trials, rule on the admissibility of evidence, and . . . enforce compliance with discovery orders".¹⁵ The Court held in the alternative that STJs were officers because the government had conceded that, with respect to other duties, STJs "act[ed] as inferior officers who exercise independent authority."¹⁶ In the Court's view, STJs could not be "inferior officers for purposes of some of their duties . . . , but mere employees with respect to other responsibilities."¹⁷

The Court again considered how to distinguish inferior officers from mere employees in Lucia v. Securities and Exchange Commission (SEC).¹⁸ That case involved a challenge to the status of the administrative law judges (ALJs) of the SEC.¹⁹ The Court acknowledged that "Buckley's 'significant authority' test" is phrased in "general terms" that might one day need refinement, but ultimately concluded that it did not need to elaborate on that test to resolve the dispute before it, because the SEC ALJs were "near-carbon copies" of the Freytag STJs.²⁰ Without stating that any one factor was either necessary or sufficient to confer status as a constitutional "officer," the Court held that the SEC ALJs met every factor considered by the Court in Freytag. Specifically, the Court noted that ALJs (1) hold "a continuing office established by law";²¹ (2) exercise "'significant discretion' when carrying out the same 'important functions,'" including the ability to take testimony, conduct trials, rule on the admissibility of evidence, and enforce compliance with discovery orders;²² and (3) issue decisions with "independent effect."²³ Accordingly, the Court held that the cases were indistinguishable.²⁴ Because the ALJs were inferior officers, their hiring by SEC staff members violated the Constitution.²⁵ Because the petitioner had raised a "timely" Appointments Clause challenge, the Court remanded the case for a new hearing before a properly appointed ALJ or the Commission itself.²⁶

Footnotes:

1. Marbury v. Madison, 5 U.S. (1 Cr.) 137, 155–56 (1803) (Chief Justice Marshall). Marshall's statement that the appointment "is the act of the President," conflicts with the more generally held and sensible view that when an appointment is made with its consent, the Senate shares the appointing power. 3 J. Story, Commentaries on the Constitution of the United States 1525 (1833); In re Hennen, 38 U.S. (13 Pet.) 230, 259 (1839).
2. 3 Ops. Atty. Gen. 188 (1837).
3. 3 J. Story, supra at 1525–26; 5 Works of Thomas Jefferson 161–62 (P. Ford ed., 1904); 9 Writings of James Madison 111–13 (G. Hunt ed., 1910).
4. 286 U.S. 6 (1932).
5. E. Corwin, supra at 77.
6. Marbury v. Madison, 5 U.S. (1 Cr.) 137, 157–58, 173 (1803). The doctrine applies to presidential appointments regardless of whether Senate confirmation is required.
7. 12 Ops. Atty. Gen. 306 (1867).
8. For various reasons, Marbury got neither commission nor office. The case assumes, in fact, the necessity of possession of his commission by the appointee.
9. See, e.g., Lucia v. SEC, No. 17-130, slip op. at 5 (U.S. June 21, 2018). See also Burnap v. United States, 252 U.S. 512, 516 (1920).
10. 424 U.S. 1, 126 (1976) (per curiam) (quoting U.S. Const. art. II, § 2, cl. 2). See also Go-Bart Importing Co. v. United States, 282 U.S. 344, 352–53 (1931); United States v. Germaine, 99 U.S. 508, 510 (1879).
11. 501 U.S. 868, 881 (1991).
12. Id.
13. Id.
14. Id. See also Auffmordt v. Hedden, 137 U.S. 310, 327 (1890) (holding that merchant appraiser is not an officer because the "position is without tenure, duration, continuing emolument, or continuous duties, and he acts only occasionally and temporarily"); United States v. Germaine, 99 U.S. 508, 510 (1879) (holding that civil surgeon is not an officer after noting that "the duties are not continuing and permanent, and they are occasional and intermittent").
15. Freytag, 501 U.S. at 881–82.
16. Id. at 882.
17. Id.
18. No. 17-130, slip op. at 5 (U.S. June 21, 2018).
19. Id. at 1.
20. Id. at 6.
21. Id. at 8.
22. Id. at 8–9 (quoting Freytag, 501 U.S. at 882).
23. Id. at 9.
24. Id. at 10.
25. Id. at 5, 12.
26. Id. at 12; see also Ryder v. United States, 515 U.S. 177, 182 (1995) (holding that “one who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case is entitled to a decision on the merits of the question and whatever relief may be appropriate if a violation indeed occurred"). Cf. Carr v. Saul, Nos. 19-1442, 20-105, slip op. at 2 (U.S. Apr. 22, 2021) (holding that petitioners, Social Security claimants, did not forfeit their Appointments Clause challenges by raising them for the first time in federal court and not before the administrative law judges who presided over their agency hearings).