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TheAppointments Clause of theUnited States Constitution empowers thepresident of the United States to nominate and, with theadvice and consent (confirmation) of theUnited States Senate, appoint publicofficials.[1] Although the Senate must confirm certain principal officers (includingambassadors,Cabinet secretaries, andfederal judges), Congress may bylaw invest the appointment of "inferior" officers to the President alone, or to courts of law or heads of departments.
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.
The president hasplenary 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. AsGouverneur Morris stated in theConstitutional 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 confersplenary power to the president to nominate, and confers plenary power to the Senate to reject or confirm a nominee, through itsadvice and consent provision. As with otherseparation 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 inFederalist 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.
Severalframers of the U.S. Constitution explained that the required role of the Senate is to advise the presidentafter the nomination has been made by the president.[4][5]Roger Sherman believed that advicebefore nomination could still be helpful.[6] Likewise, PresidentGeorge 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 afilibuster 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 theSupreme 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 ofNeil 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]
The Appointments Clause distinguishes betweenofficers of the United States who must be appointed with theadvice and consent of the Senate; and those who may be specified by acts of Congress, some of whom may be appointed with theadvice 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 ofinstitutional 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. InBuckley 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 inMorrison 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. InEdmond 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 theEthics in Government Act of 1978.[11] InLucia v. SEC, 585 U.S. 237 (2018), the Court held thatadministrative law judges are inferior officers within the meaning of the Appointments Clause of the United States Constitution.
What constitutes a "Department" when Congress seeks to place the appointment power away from the president is another key question. 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 toBuckley 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". InFreytag v. Commissioner of Internal Revenue (1991), the Court interpreted "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, theFreytag decision itself seemed unclear what it meant by the phrase "like the Cabinet-level departments", and certainly stepped back from any bright-line test. TheFreytag decision sought to harmonize its analysis with the interpretation given the different term "executive Departments" in theOpinion 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, theFreytag 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 inFreytag 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 JusticeAntonin Scalia reasons in his concurrence inFreytag) 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 theUnited States Patent and Trademark Office (USPTO) permitted a number of judges of theBoard of Patent Appeals and Interferences and theTrademark 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.
Madison, Jefferson, and Jay all advised Washington not to consult the Senate before making nominations.
In the act of nomination his judgment alone will be exercised.
... their advice may enable him to make such judicious appointments.
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.