The Appointments Clause

Article II of the U.S. Constitution enumerates the powers and duties of the President of the United States. Article II, Section 2, Clause 2 gives the president the power to appoint federal officers, such as:

• Foreign ambassadors
• Supreme court justices
• Lower federal judges
• Consuls
• Cabinet members (e.g., the secretary of state)
• All other officers of the United States

The appointments clause contemplates three different phases of the appointment process. First, the president nominates an official. Second, the Senate conducts its confirmation process. The third step involves the president appointing and commissioning the appointee. This process reinforces the Constitution's structure for the separation of powers.

This article describes the appointment clause. First, it provides the text of Article II, Section 2, Clause 2. Then, it provides a general overview of the appointments clause and answers frequently asked questions about it. It then provides the clause's historical background, including significant Supreme Court cases involving it.

Article II, Section 2, Clause 2

Article II of the U.S. Constitution establishes the executive branch and vests the executive power in the President of the United States. Article II, Section 2, Clause 2 of the Constitution states the following:

"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."

In addition, Article II, Section 2, Clause 3 contains the recess appointments clause. It reads as follows:

"The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."

The Appointments Clause Explained

Article II, Section 2, Clause 2 gives the president the power to appoint several types of federal officers. The president's nominations are subject to the Senate's consent.

Clause 2 clarifies that Congress can pass regulations regarding appointing "inferior officers." For example, Congress can eliminate the Senate's role in the appointment process and vest it in the president alone. Congress can also eliminate both the Senate's and president's roles and give the power to the heads of executive departments. Alternatively, Congress can give the power to an Article III court.

At the Constitutional Convention in 1787, the Framers debated which branch of government should possess the appointment power. The Framers had firsthand knowledge of how the ability to appoint people to positions of power could lead to tyranny. They considered giving the power to Congress, the Senate, and the president. Their solution was a compromise between the various arguments put forth during the convention. Read the Historical Background section below for more information.

What does "advice and consent of the senate" mean?

The second step of the appointment process requires the Senate to confirm or reject the president's nominee.

Presidents frequently nominate candidates to fill openings in the federal court system. The Senate's Judiciary Committee holds hearings on each nominee. Senators who participate ask nominees questions to determine their fitness for the bench. Nominees often have to make disclosures to a relevant Senate committee as well.

After the hearing, the Senate will decide whether to confirm or reject the candidate. If a candidate receives a majority vote in favor of appointment, the president may commission them.

The Senate usually confirms the president's nominees, especially for the Supreme Court. As the Heritage Center notes, in the past 100 years, the Senate has rejected only three presidential nominees for the Supreme Court. However, the Senate has rejected or failed to act on numerous presidential nominees for other positions.

What does it mean to "commission officers"?

The last step in the appointment process involves the president commissioning and appointing their appointee. After receiving congressional approval, the president must present a commission to the nominee. When the nominee is sworn in, they assume the duties and powers of the office.

As the Constitution Annotated notes, the president is not obligated to commission an appointee that the Senate confirmed. Instead, the president has discretion regarding commissioning and appointing the successful candidate. A candidate can only assume their office once they receive a commission from the president.

As the commander in chief of the armed forces, the president may also commission military officers. This process involves a military member who achieves a rank before assuming their role. The person commissioned becomes a subordinate executive officer.

Who are “officers of the United states?"

A critical factor in determining whether the appointments clause applies is whether a given person is an "Officer of the United States."

In Buckley v. Valeo (1976), the Supreme Court defined an officer of the United States as "any appointee exercising significant authority pursuant to the laws of the United States." This definition remains the modern standard for who qualifies as an officer. However, the Court has not expanded on its definition since Buckley.

There are two types of officers with regard to the appointments clause:

• Principal officers are officers that the president selects with the advice and consent of the Senate. Examples include Supreme Court Justices, federal judges, and cabinet members.
• Inferior officers are officers that Congress may allow the President to appoint unilaterally. If Congress allows, the heads of departments or the judiciary may also appoint inferior officers. Special prosecutors, special trial judges, and administrative law judges are examples of inferior officers.

As the Supreme Court has noted, "the line between 'inferior' and 'principal' officers is one that is far from clear, and the Framers provided little guidance into where it should be drawn."

Generally, the following four factors determine whether or not a given person is a principal or inferior officer:

• Whether a higher executive branch official can remove them from their office
• Whether they have specific and limited duties
• Whether their office is "limited in jurisdiction"
• Whether their tenure in office is limited or temporary

If someone meets the factors listed above, a court would likely determine them to be an inferior officer. Recall that the appointments clause allows Congress to vest the appointment power of inferior officers in the president, heads of departments, and the judiciary. Therefore, the president does not necessarily have to appoint inferior officers for their appointment to be valid.

For example, in Edmond v. United States (1997), the Court held that the Secretary of Transportation could appoint civilian judges to the Coast Guard Court of Appeals. The Court found the judges to be inferior officers within the appointments clause's meaning. It specifically noted that the General Counsel and Court of Appeals of the Armed Forces oversaw their work.

As another example, President George Washington appointed a special agent to England in 1790. Other presidents have dispatched emissaries and special agents in limited diplomatic roles. The Constitution Annotated notes that the "justification for this historical practice" is that these agents are not technically "officers of the United States" because their duration is limited and is only for a limited purpose.

Who are ambassadors, ministers, and consuls?

Ambassadors refer to foreign diplomats, such as the Ambassador to France. A minister is the head of an executive department.

Consuls refer to people serving in United States consulates in foreign countries. All three positions generally have the authority to speak and act on the United States' behalf.

What is the recess appointments clause?

Article II, Section 2, Clause 3 is known as the recess appointments clause. It allows the president to temporarily fill vacancies that occur when the Senate is in recess. To do so, the president grants a commission to someone who will fill the vacancy until the end of the Senate's next session.

The appointments clause remains the primary method that the president uses to appoint executive branch officials. The recess appointments clause only applies if a vacancy occurs while the Senate is in recess.

The recess appointments clause was essential in early America. The Framers intended it to operate when the Senate was unavailable for extended periods, whether due to travel time or an emergency. In modern times, presidents are more likely to invoke it when the Senate is politically opposed to the president.

Historical Background of the Appointments Clause

In Great Britain, the King of England had the power to create offices and appoint people to them. In practice, the king could appoint anyone they wanted to a position of power, making them both powerful and wealthy.

The English Revolution of 1688 limited the king's power by introducing the idea of parliamentary supremacy. Following the revolution, the British Parliament could bind the king by passing laws that the king had to abide by.

English kings, however, found a workaround. They could still create offices that offered power and riches to their appointees. By appointing members of Parliament to these offices, kings could "buy" their favor, votes, and legislative power.

The American Revolutionaries viewed the kings' abuses of the appointment power as an instrument of tyranny. After America declared its independence in 1776, several states vested their appointment powers in state legislatures. However, taking power away from governors led to dominant state legislatures. Which, in turn, led to weaker leadership within the individual states.

Debates Over the Appointment Power

At the constitutional convention, the Framers' debates regarding the appointment power centered on who should have the power. The Framers debated between the following three options:

• Vest it in a single person (i.e., the president)
• Vest it in a select committee (i.e., the Senate)
• Vest it in a single person, subject to the consent of a select committee

In The Federalist No. 76, Alexander Hamilton explained the decision to vest the appointing power in the president, subject to the Senate's consent. He argued that, on the one hand, giving the power to the president alone would lead to a similar situation of English kings abusing their power to appoint.

Vesting the sole power to appoint in a legislative body, on the other hand, would result in political log-rolling. On that point, Hamilton explained that it would devolve into politicians trading support, or, as he put it, "'Give us the man we wish for this office, and you shall have the one you wish for that.'"

Hamilton argued that the best compromise was to vest the nomination power in a president and require senatorial confirmation. This allowed the president to choose the person they thought would best fulfill the office's duties while also holding the president accountable for their decision.

That the Senate must confirm the appointee's nomination also represented "an excellent check upon a spirit of favoritism in the President," Hamilton wrote. In other words, it would prevent the president from choosing family members and "unfit characters" for the positions.

This idea reinforces the Constitution's separation of powers and is another Article I check on the executive branch. Another check Congress has on the president's appointment power is that only Congress can create the federal offices for which a president can nominate and appoint an officer.

Buckley v. Valeo (1976)

In Buckley, the Court considered the constitutionality of the Federal Election Campaign Act (FECA), a federal law that regulates political contributions to politicians running for federal office.

The Federal Election Commission (FEC) had the power to enforce FECA and make rules regarding it. The statutory scheme that created the FEC provided the following with regard to its members:

• The President Pro Tempore of the Senate would nominate two members
• The Speaker of the House of Representatives would nominate two members
• The President of the United States would nominate two members

In other words, the president would nominate two FEC members, and members of Congress would nominate the other four.

Several people and groups challenged the FECA in federal court. They argued that the FECA was unconstitutional for several reasons. One argument focused on its method for appointing FEC members. Specifically, they argued that the FEC was part of the legislative branch. Therefore, the appointment process unconstitutionally usurped the president's appointing powers.

The Court held that only the president may nominate and appoint officers. It also held that the FEC could not enforce laws because it was not part of the executive branch. Therefore, the Court ruled that the law's appointment procedures were unconstitutional.

As noted above, Buckley defined an officer of the United States as "any appointee exercising significant authority pursuant to the laws of the United States." The Court has not discussed this definition in further detail. However, it remains the modern understanding of the term.