NOMINATION OF SITTING MEMBER OF CONGRESS TO BE
AMBASSADOR TO VIETNAM The Ineligibility Clause does not bar the nomination of Representative Pete Peterson to be Ambassador of the Socialist Republic of Vietnam, provided that the President does not make the determination to create the office of ambassador to that government until after the expiration of the term for which Representative Peterson was elected.
July 26, 1996 MEMORANDUM OPINION TO THE COUNSEL TO THE PRESIDENT You have asked for our opinion as to whether the Ineligibility Clause of the Constitution, U.S.Const. art. I, § 6, cl. 2, operates to bar the nomination of Representative Douglas ("Pete")Peterson to be Ambassador to the Socialist Republic of Vietnam. We conclude that, in thecircumstances of this case, Representative Peterson is not ineligible, provided that the President doesnot make the determination to create the office of ambassador to that government until after theexpiration of the term for which Representative Peterson was elected.
I. The Ineligibility Clause (the "Clause"), U.S. Const. art. I, § 6, cl. 2, states, in part,
that
No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased, during such time . . . .Representative Peterson was elected on November 8, 1994, for a term that began on January4, 1995, and that will end at noon of January 3, 1997. The President nominated him as Ambassador tothe Socialist Republic of Vietnam ("Vietnam") on May 23, 1996.
If the Ineligibility Clause applies to Representative Peterson's appointment to the office ofAmbassador to Vietnam, it will apply only until the end of the term for which he was elected, i.e., untilJanuary 3, 1997, but not thereafter. (1) Prior opinions of the Attorney General and of our Office haveresolved that an ineligible Member of Congress cannot escape the Clause by resigning from Congressbefore accepting his or her appointment to office. (2)The opinions and practice of the Executive branchhave also assumed that the Clause cannot be avoided if an ineligible Member of Congress is nominatedand confirmed to an office created during the term for which the Member was elected, but notcommissioned by the President until after that term expires. (3)
Before proceeding further, we note that there is a difficult and substantial question whether theambassadorial position for which Mr. Peterson has been nominated would be a "civil Office" coveredby the Clause. The only precedent we have identified that is directly on point assumes (withoutdiscussion) that it should be considered to be such an office. (4) In accordance with that precedent, weshall assume here, without deciding, that the Ambassadorship to Vietnam would be a "civil Office"within the meaning of the Ineligibility Clause. (5)
II. The central question, therefore, is whether the office of Ambassador to Vietnam has been"created" within the proscribed time. (6) This appears to be a case of first impression; in anyevent, relevant precedents are rare. (7) While federal offices are nearly always created by Acts ofCongress (or else pursuant to delegations of legislative authority), (8) the Executive branchhas historically taken the position that the President has the inherent, constitutional power to creatediplomatic offices, and Congress has generally acquiesced in that view. (9)
As long ago as 1855, Attorney General Caleb Cushing opined that the Constitution conferredon the President the power to appoint ambassadors and other diplomatic officers, subject only to theadvice and consent of the Senate, in the absence of any legislation purporting to create offices for themto occupy. He stated that the Appointments Clause of the Constitution, U.S. Const. art. 2, § 2,cl. 2, (10)
empowers the President to appoint [ambassadors] and other "public ministers,"that is, any such officers as by the law of nations are recognised as "public ministers," without making the appointment of them subject, like, "other (non-enumerated)officers," to the exigency of an authorizing act of Congress. In aword, the power to appoint diplomatic agents, and to select for employmentany one out of the varieties of the class, according to his judgment of thepublic service, is a constitutional function of the President, not derived from, nor limitable by, Congress, but requiring only the ultimate concurrence of theSenate; and so it was understood in the early practice of the Government.Ambassadors and other Public Ministers, 7 Op. Att'y Gen. 186, 193 (1855). (11)
With reference to early practice, Attorney General Cushing cited the case of President GeorgeWashington's nomination of William Short to bechargé d'affaires in France, during thetemporary leave of Ambassador Thomas Jefferson. (12) This nomination occurred very early inWashington's first term, even before the first Congress had been able to enact legislation creating theDepartment of Foreign Affairs (later, the State Department). (13) As Cushing pointed out, "no enactmentoccurs at that session, either in the act making appropriations for the service of the year, (i Stat. atLarge, p. 95), or in any other, to define the number or rank of the diplomatic agents of the UnitedStates." (14) Hence, "the designation of the officer was derived from the law of nations, and the authorityto appoint from the Constitution." (15)
It appears that the practice of the political branches thereafter generally accorded with theExecutive's conception of its constitutional power. InFrancis v. United States, 22 Ct. Cl. 403, 405(1887) (emphasis added), the court said:
Most offices of the Government are established by general laws,except in the diplomaticservice, and all salaries are fixed in like manner . . . . In the diplomatic service, Congress seemsto have practically conceded, whether on constitutional grounds rightly orwrongly taken or otherwise, the duty, power, or right of the Executive to appoint diplomaticagents, of any rank or title, at any time and at any place, subject tosuch compensation, or none at all, as the legislative branch of the Government should in itswisdom see fit to provide
In another opinion from the same time, the court again pointed out that the Executive hadconsistently taken this view of its power, and that Congress had long acceded to it:
It has been claimed by the Executive, in accordance with the opinion of Attorney General Cushing, that by the Constitution to the Executive alone is granted the power to appoint diplomatic agents of any rank or title, at any time, and at any place, and upon the exercise of this power Congress can place no extension or limitation, by undertaking either to create, abolish, or change the character, title, or rank of officers. On the other hand, to the legislativebranch of the Government alone is granted the power to provide for thecompensation of those, as well as of all other public officers, and this it may do in such manner as it deems best, or may withhold all compensationwhenever it sees fit to do so. During the whole of the administration ofPresident Jefferson, and part of the terms of other early Presidents, Congress annually appropriated a sum in gross "for the expenses of intercourse with foreign nations," leaving it to the Executive to fix the salaries of its severalappointees.
Byers v. United States, 22 Ct. Cl. 59, 63-64 (1887). (16)
Accordingly, we believe that the President has the inherent, constitutional power to creatediplomatic offices such as ambassadorships, without any need for statutory authorization. (17) Thequestion then becomes that of identifying the time at which the President acts to create such offices.
Particularly instructive is a controversy over the Recess Appointments Clause, U.S. Const. art.II, § 2, cl. 3, that arose during the War of 1812, under the Presidency of James Madison. (18) The Czar of Russia had unexpectedly offered to mediate between the United States andGreat Britain, who were then at war. President Madison was eager to grasp theopportunity, and in 1813 gave recess appointments to Albert Gallatin, John Quincy Adams and JamesA. Bayard to negotiate a peace treaty. Madison also sought the Senate's advice andconsent to their appointment as Envoys Extraordinary and Ministers Plenipotentiary. The Senateconfirmed Adams' and Bayard's nominations, but rejected Gallatin's. Senator Goreintroduced a motion to censure Madison, on the grounds that the recess appointments had beenunconstitutional. The principal argument was that because these offices had not been establishedby statutory law, no vacancies existed to which the President could make recess appointments. Madison's defenders in the Senate argued that the recess appointments were constitutional,maintaining that the President had the inherent power to create diplomatic offices when and as, in hisjudgment, international circumstances so required -- and thus, if need be, during arecess of the Senate. (19) Senator Bibb, an ally of Madison's, reasoned that it was essential to recognize
two descriptions of offices altogether different in their nature, authorized by theConstitution -- one to be created by law, and the other depending for theirexistence and continuance upon contingencies. Of the first kind, are judicial, revenue,and similar offices. Of the second, are Ambassadors, other Public Ministers andConsuls. The first description organize the Government and give it efficacy. They formthe internal system, and are susceptible of precise enumeration. When and how theyare created, and when and how they become vacant, may always be ascertained withperfect precision. Not so with the second description. They depend for their originalexistence upon no law,but are the offspring of the state of our relations with foreignnations, and must necessarily be governed by distinct rules. As an independent Power,the United States have relations with all other independent Powers; and themanagement of those relations is vested in the Executive.22 Annals of Cong. 699 (1814) (emphasis added).
With respect to the disputed recess appointments, Bibb argued
that the office could not exist until the Russian mediation was proposed, and that it wasproposed during the recess of the Senate. Until, therefore, the office was created, it could notbe said to have been either full or vacant; but the moment it commenced its existence, it wasnecessarily full or vacant. It was vacant until filled by the President.The office itself, like that ofall foreign missions, was the offspring of circumstances, and the happening of the vacancy wascontemporaneous with the commencement of the office. They were both created by theoccasion; the occasion occurred; the office began its existence; the vacancy happened duringthe recess of the Senate; and as the Executive is authorized "to fill up all vacancies which mayhappen during the recess," it was his Constitutional right to fill this.26 Annals of Cong. 702-03 (emphasis added). (20)
Senator Horsey (a Federalist, and so not of Madison's party), also defended the President's recess appointments, arguing that
[t]he office then of a public Minister is the medium through which the Executive isenabled to manage our foreign relations, and particularly to conduct negotiations. It isan office wholly different from the ordinary offices created by the Constitution or bylaw. . . . [I]t is an office not created by the Constitution, nor by any municipal law, butemanates from the laws of nations and is common to all civilized Governments. . . . It isan office, if it may be so called,sui generis. The number may be multiplied to anyextent, or diminished.It is brought forth with the occasion, and disappears when theoccasion ceases. When not filled, if it exists at all, it is only in contemplation. . . . Theoffice of a public Minister, therefore, depends upon events, upon the state of foreignaffairs, and is authorized by the laws of nations. . . .The office in truth attacheswhenever the occasion arises to use it, and the act of appointment is the consummationof the law.Id. at 711-12 (emphasis added). (21)
Review of this controversy suggests that, at the very least, diplomatic offices may be created bythe President at whatever time, in his judgment, the interests of the United States in itsdealings with foreign nations require them to be made. (22) To be sure, the President's decisionmakingmay unfold over a period of time, and he will ordinarily take various preparatory steps relating to thecreation of a diplomatic office before he unequivocally determines to do so. The remarks of Madison'sdefenders in the Senate debate suggest that, if it becomesnecessary to pinpoint the precise time at which the President creates such an office (as, for instance, indetermining the validity of a recess appointment), then that time should beidentified as the moment at which hefills the office. While the 1814 debate was directed to theinterpretation of the Recess Appointments Clause, we believe that it also illuminates themeaning of the Ineligibility Clause.
III. We think it fair to say that the patterns of constitutional practice that we have described do notconclusively answer the questionwhen the office of an ambassadorship is created.Nonetheless, we think that the legal and historical materials strongly point towards a particular answer,and we find that answer to be considerably more persuasive than any of thealternatives. Based on our survey of the materials, including the 1814 debate, we believe that thefollowing tests are appropriate in determining when, for purposes of the Ineligibility Clause, thePresident has created the office of ambassador to a particular foreign State, in cases when such anambassadorship has not existed before or (as in the case of Vietnam) has lapsed or been terminated:
1. In the usual course, the office is created at the time of appointment of the first ambassador toa foreign State once the President establishes diplomatic relations with that State.All that precedes the appointment -- offering to establish normal diplomatic relations, receiving the foreign State's agreement to receive a particular person as the United States' ambassador, nominating and confirming that individual as ambassador -- are all steps preparatory to the creation of the office. (23) If the President ultimately declines to appoint an ambassador, the "office" is never created.
2. The President, nonetheless, retains the power to alter the ordinary course of events, and tocreate the office at some other time -- or not at all. The act of creating the office mustbe distinguished from the preparatory steps leading to its creation. The preparatory acts indicate thatthe Presidentintends to create the office; they do not in themselves constitute its creation. Indeed, inthe ordinary course, the President should be understood to intend to create the office ofambassador upon theappointment of the individual as the first ambassador to the receiving State. (24)
We turn now to the application of these tests to the ambassadorship to Vietnam.
IV. The process by which the United States has been normalizing its relations with Vietnam hasbeen underway for several years. (25) The Republic of Vietnam ("RVN") was constituted as anindependent State within the French Union in 1950, and the United States sent a Minister to that State. (The United States did not recognize the Democratic Republic of Vietnam ("DRVN"), which had earlierdeclared itself to be an independent State.) Thereafter, on June, 25, 1952, the United States appointedan Ambassador to the RVN, and upgraded the United States Legation in Saigon to Embassy status. In1954, Vietnam was partitioned into what came commonly to be called "North" and "South" Vietnam. Despite an international agreement calling for the reunification of Vietnam, that did not occur; instead,the RVN, functionally, became SouthVietnam, and the DRVN, functionally, North Vietnam. The United States maintained an ambassadorialpost in the RVN from 1952 onwards. The last United States Ambassador left his post in Saigon onApril 29, 1975. (26)
After the Communist victory over South Vietnam in April, 1975, it became the position of theUnited States that "[t]he Government of South Vietnam has ceased to exist and therefore theUnited States no longer recognizes it as the sovereign authority in the territory of South Vietnam. TheUnited States has not recognized any other government as constituting such authority."Republic of Vietnam v. Pfizer, Inc., 556 F.2d 892, 895 n.4 (8th Cir. 1977) (quoting Letter for the Department of Justice from the Department of State) (June9, 1975)).
During the present administration, several successive and carefully measured steps were taken with a view toimproving, and perhaps normalizing, relations between the United States and Vietnam. On July 2, 1993, PresidentClinton announced that the United States would no longer oppose the resumption of aid to Vietnam by internationalfinancial institutions. On February 3, 1994, the President announced the lifting of the United States' embargo againstVietnam. He also announced an intent to open a liaison office in Hanoi in order to promote further progress on issues ofconcern to both countries, including the status of American prisoners of war and Americans missing in action. Hisstatement emphasized, however, that "[t]hese actions do not constitute a normalization of our relationships. Before thathappens, we must have more progress, more cooperation and more answers." (27) On May, 26, 1994, the UnitedStates and Vietnam formally entered into consular relations within the framework of the Vienna Convention onConsular Relations,done Apr. 18, 1961, 21 U.S.T. 77, 596 U.N.T.S. 261, to which both States were party. TheUnited States, however, continued to condition diplomatic relations on progress in areas of concern to it. On January28, 1995, the United States and Vietnam signed an agreement relating to the restoration of diplomatic properties andanother agreement relating to the settlement of private claims. On July 11, 1995, the President announced an offer toestablish diplomatic relations with Vietnam under the Vienna Convention on Diplomatic Relations, done Apr. 18, 1961,23 U.S.T. 3227, 500 U.N.T.S. 95 -- an offer that Vietnam accepted on the following day. In announcing that offer, thePresident stated that from the beginning of his Administration, "any improvement in relationships between America andVietnam has depended upon making progress on the issue of Americans who were missing in action or held asprisoners of war." (28) Soon thereafter, the United States Liaison Office in Hanoi was upgraded to a Diplomatic Post.
On May 8, 1996, the Government of Vietnam gave its agreement ("agrément") to the UnitedStates' proposal that Representative Peterson be Ambassador Extraordinary and Plenipotentiary of theUnited States to Vietnam. (29) On May 23, 1996, the Presidentsubmitted Mr. Peterson's name to the United States Senate for its advice and consent to thatappointment.
In our judgment, while this pattern of activity demonstrates that the President fully intends andexpects to create the office of ambassador to Vietnam, it does not establish that he has, infact, yet done so. The establishment of diplomatic relations does not entail the establishment of adiplomatic mission or the creation of the office of an ambassador.See Vienna Conventionon Diplomatic Relations, art. 2, 23 U.S.T. at 3231, 500 U.N.T.S. at 98. Moreover, the existence of diplomatic relations with Vietnam does notrequire (although it may normally assume) an exchange of ambassadors, since relationsmay be conducted at a lower diplomatic level. Further, we do not think that Vietnam'sagrément toreceive Mr. Peterson as ambassador establishes that that office exists for constitutionalpurposes. (30) Nor (although the question is closer) does the President's decision to submit Mr.Peterson's name to the Senate for confirmation. Even if Mr. Peterson is confirmed, thePresident would retain the discretion not to send an ambassador to Vietnam, or otherwise not to createthat office. In view of the facts that the United States has not had an ambassador toVietnam since 1975 (and has never had an ambassador to the present government), that the process ofnormalizing relations between the United States and Vietnam has been a complex andprotracted one, and that contingencies, however unlikely, may yet arise that would lead the President toconclude that it was not in the United States' best interests to appoint and send anambassador, we do not think that the office of ambassador to Vietnam can be said toexist unless anduntil the President actually completes the process by appointing an officer to thatposition. Accordingly, if the President decides not to appoint Mr. Peterson to that office until after theexpiration of the present term of Congress on January 3, 1997, we do not think thatMr. Peterson is constitutionally ineligible for that appointment.
In the interests of clarity, we repeat that we arenot maintaining that an "appointment" within themeaning of the Ineligibility Clause does not occur until the appointee isactuallycommissioned by the President. Whatever the merits of that view as an original proposition(and they are substantial), (31) we are not writing on a clean slate.Accordingly, we follow the centuries-old teaching and practice of the Executive branch in assuming thatthe nomination of an ineligible individual is itself a constitutional nullity, even ifthe commissioning of that individual were to occur after the term of his or her ineligibility. Our positionis that, in the singular circumstances of this case, the relevantoffice -- theAmbassadorship to Vietnam -- has not yet been "created," so that no ineligibility exists. Thus, both thePresident's act of nominating Mr. Peterson, and the Senate's act of confirming him(if it does), are constitutionally valid.
V. It could be argued that our analysis gives insufficient weight to the policy of the IneligibilityClause, inasmuch as it makes it possible, by the President's decision to withholdcreating a diplomatic post until after the expiration of a Congressional term, to appoint an otherwiseineligible Member of Congress to that position. We would disagree. The tradition ofinterpreting the Clause has been "formalistic" rather than "functional," and our analysis comports fullywith the literal meaning of the text. Furthermore, it is important to bear in mind that the Clause was acompromise that reflected policy disagreements at the Philadelphia Convention: to some extent, atleast, the Clause was designed topermit Members of Congress, inappropriate circumstances, to hold office in the Executive branch. (32)
Moreover, even at the time of the Framing, it was understood that the Clause was a highly imperfectsafeguard against the danger that the prospect of appointment to office wouldimproperly influence Members of Congress. Luther Martin, a delegate from Maryland to thePhiladelphia Convention, provided his State legislature with a critical report on the Convention's work. As to the Ineligibility Clause, he wrote:
As to the exception that [Members of Congress] cannot be appointed to officescreated by themselves, or the emoluments of which are by themselves increased, it iscertainly of little consequence, since they may easily evade it by creating new offices, towhich may be appointed the persons who fill the offices before created, and therebyvacancies will be made, which may be filled by the members who for that purpose havecreated the new offices. (33)
More recent commentators have also pointed out the inadequacy of the Clause as a device forcontrolling the abuses at which it is apparently aimed. Thus, former Assistant AttorneyGeneral Antonin Scalia rejected a policy-based interpretation of the Clause, writing:
the constitutional provision does not avoid some degree of absurdity in any event, nomatter what imaginatively constructed extensions are devised; and . . . therefore it isbest to restrict the provision to its clear, literal meaning . . . . As for a means of easyevasion, nothing could be easier than having the Congress create a new post, to befilled by an existing appointee, and then appointing the favored Member to the vacatedoffice. In light of the essential incohesivesness of the constitutional provision, I donot regard the policy argument . . . as persuasive.
Memorandum for Hugh M. Durham, Chief, Legislative & Legal Section, Office of Legislative Affairs,from Antonin Scalia, Assistant Attorney General, Office of Legal Counsel,Re:Proposed bill to increase the salary of the Attorney General 6 (Nov. 22, 1974). (34)
VI. Finally, there remains the question whether the President may nominate, and the Senateconfirm, an individual for an office that does not exist at the time of the nomination andconfirmation, but is expected to come into existence later. The Office of the Senate Legal Counsel raises this objection, stating that "we are aware of no prior instance in which the President appointed someone to an office that did not yet exist." (35) There are, however, several such precedents.
The practice of the political branches establishes that the President may make a nomination, andthe Senate give its advice and consent, for an office not yet in being. For example, the statute creatingthe Occupational Safety and Health Review Commission became effective on April 28, 1971. See Occupational Safety and Health Act of 1970, Pub. L. No. 91-596, § 34, 84 Stat. 1590, 1620. President Nixon nominated the firstmembers of the Commission on March 19, 1971,see 117 Cong. Rec. 7270 (1971), and the Senateconfirmed the nominees on April 14, 1971, "effective in accordance with the provisions of law,"id. at10458. Similarly, Reorganization Plan No. 1 of1953, 3 C.F.R. 1022 (1949-1953),reprinted in 5 U.S.C. app. at 1488 (1994),and in 67 Stat. 631 (1953), created the office of Secretary of Health, Education, andWelfare, as of April 11, 1953. On April 2, 1953, President Eisenhower nominated OvetaCulp Hobby to be the first Secretary, effective April 11,see 99 Cong. Rec. 2716 (1953), and the Senateconfirmed her on April 10, id. at 2958. (36)
The reasoning that supports this procedure is similar to that underlying nominations andconfirmations for prospective vacancies in existing offices:
[A]s a constitutional matter, nothing precludes the nomination and confirmation ofa successor while the incumbent still holds office. Confirmation does not confer anyrights on the nominee; the President remains free to decide that he does not want to makethe appointment, which is not legally completed until the execution of the commission.
Nominations for Prospective Vacancies on the Supreme Court, 10 Op. O.L.C. 108, 109 (1986). ThePresident and Senate have repeatedly used this procedure for prospective vacancies.seeId. at110-11. Just as in the case of prospective vacancies, nomination and confirmation for a prospectiveoffice can confer no rights on the nominee, who must await further decisions and the President'sappointment.
The Office of the Senate Legal Counsel also objects that the nomination and confirmation of anindividual to a position that is to be created later "raises serious separation of powersconcerns because it might fundamentally reshape and limit the Senate's constitutionally-basedconfirmation power. The Senate's advice and consent function requires a review not simply of thenominee, but of his fitness to fulfill a particular office." (37) We do not find that objection forceful in thecircumstances present here. First, the Senate's constitutional power to reject a nominee for any reason,or for none, is completely unimpaired. Second, in the actual circumstances of this nomination, theSenate possesses all the facts that are needed to make an informed judgment of the nominee's fitness toserve as Ambassador to Vietnam. Even if that particular ambassadorship has yet to be created, theduties and responsibilities of an ambassador are of course perfectly familiar to the Senate.
Conclusion Accordingly, we conclude that Representative Peterson is not constitutionally ineligible forappointment as Ambassador to Vietnam, provided that the President finally creates that officeafter Representative Peterson's term of office as a Member of Congress has expired on January 3, 1997.
CHRISTOPHER SCHROEDER Acting Assistant Attorney General Office of Legal Counsel 1. See, e.g.,Appointment of Senator as Federal Judge, 33 Op. Att'y Gen. 88, 89 (1922)(Senator elected for term expiring March 4, 1919, and re-elected for term beginning on same date, waseligible to be appointed as federal judge, notwithstanding fact that salaries of federal judges wereincreased by Act of Congress of February 25, 1919).
2. See, e.g.,Appointment to Civil Office, 17 Op. Att'y Gen. 365 (1882) (prospective appointeeheld ineligible despite having resigned from Congress during term for which he was elected and beforeappointment would have been made); Memorandum for the Honorable John D. Ehrlichman, Assistantto the President for Domestic Affairs, from William H. Rehnquist, Assistant Attorney General, Office ofLegal Counsel,Re: Eligibility of members of the 91st Congress to be appointed to the position ofDirector of the Office of Management and Budget 4-5 (Mar. 31, 1970) (reaffirming prior view);accord Memorandum to the Honorable Jesse Helms, Chairman, and the Honorable Claiborne Pell,Ranking Member, from Thomas B. Griffith and Jill E. Hasday, Office of Senate Legal Counsel, Re: The Ineligibility Clause at 2 (July 24, 1996) ("Senate Memo")
3.See Memorandum for the Attorney General from Charles J. Cooper, Assistant AttorneyGeneral, Office of Legal Counsel,Re: Ineligibility of Sitting Congressman to Assume A Vacancy on theSupreme Court 3 n.2 (Aug. 24, 1987);Federal Election Commission -- Appointment of Members, 2Op. O.L.C. 359, 360 (1977);Member of Congress -- Appointment to Office, 21 Op. Att'y Gen. 211,214 (1895); Appointment to Civil Office, 17 Op. Att'y Gen. 522, 523 (1883);accord Senate Memo at 2-3.
This construction of the meaning of the term "appointed" in the Ineligibility Clause originatedwith President George Washington, who withdrew the nomination of an ineligible former Senator to bean Associate Justice of the Supreme Court, and declared the act of nomination within that Senator'sterm "to have been null by the Constitution."Nomination of George Washington,in 1 Maeva Marcuset al. (eds.),The Documentary History of the Supreme Court of the United States, 1789-1800 90(1985).
At least one later President has explicitly followed the Washington precedent. In 1973,President Richard Nixon informed the Senate that he would withhold the nomination of SenatorWilliam Saxbe to be Attorney General until after Congress had cured Senator Saxbe's ineligibility byenacting legislation that would reduce the compensation and other emoluments attached tothe Office of Attorney General to those that had been in effect before Senator Saxbe began his term. President Nixon stated that "Constitutional precedents beginning with President Washington indicatethat the nomination of an individual not then eligible may be improper and that any subsequentappointment based on such nomination might be null and void." Letter from the President to the Hon.Gale W. McGee, Chairman, Comm. on Post Office and CivilService, U.S. Senate (Nov. 8, 1973),reprinted in S. Rep. No. 93-499, at 3 (1973);see alsoTo Reduce the Compensation of the Office of Attorney General: Hearing on S. 2673Before the Senate Comm. on the Judiciary, 93d Cong., 70 (1973) (the "Saxbe Hearing")(Statement of Robert G. Dixon, Jr., Assistant Attorney General Office of Legal Counsel)("[i]n light of this constitutional practice, Senator Saxbe cannot be nominated until legislation removing his disqualification has been passed").
4. See Member of Congress -- Appointment to Office, 21 Op. Att'y Gen. at 212-13(appointment of Senator as envoy extraordinary and minister plenipotentiary to Mexico was forbiddenby Clause because emoluments of that office had been increased during termfor which Senator was elected).See also Saxbe Hearing at 50 (remarks of Professor van Alstyne)(finding that opinion to be "unquestionably sound").
5. Accordingly, we do not rely on the view that the Office of the Senate Legal Counsel ascribesto us, that "the Clause applies only to congressionally-created offices." Senate Memo at 3.
As we have stated, the question whether the Ineligibility Clause generally applies toambassadorships is a difficult one. It has been said that "[t]he foremost danger" that the Clause wasintended to guard against "was that legislators would create offices with the expectancy of occupyingthem themselves."Freytag v. Comm'r, 501 U.S. 868, 904 (1991) (Scalia, J.,concurring in judgment);see alsoAtkins v. United States, 556 F.2d 1028, 1070 (Ct. Cl.1977) (per curiam) ("This provision was generated out of a fear that corruption wouldresult if the legislature multiplied the number or increased the salaries of public offices for the benefit ofits own members."),cert. denied, 434 U.S. 1009 (1978);see generally Saxbe Hearingat 70-71 (statement of Assistant Attorney General Dixon) (reviewing original materials). If the purposeof the Clause is only to prevent self-dealingby Congress, its prohibition would not extend to offices thatwere created by thePresident pursuant to his inherent, constitutional powers; and, as further discussedbelow, it has been the traditional position of the Executivebranch that diplomatic offices are created by unilateral Presidential action. On this understanding of theClause, it would not apply to the ambassadorial post for which Mr. Petersonhas been nominated.
The Clause does not in terms refer, however, to civil Offices created "by Congress": it refers to"civil Offices" as such. Moreover, the Clause might well be understood to beaddressed, not only to legislative self-dealing, but also to attempts by the Executive to exerciseimproper influence on Congress, including offers of appointments to offices that theExecutive could create by virtue of its own independent powers.See, e.g.,Buckley v. Valeo, 424U.S. 1, 124 (1976) (per curiam) (concern of Clause was with "maintenance of the separation ofpowers"); Joseph Cooper & Ann Cooper,The Legislative Veto and the Constitution, 30 Geo. Wash.L. Rev. 467, 500 (1962) ("The framers were trying to avoid a pattern of politics in which the executivemanipulated the legislature through its patronage resources or the legislature multiplied the number orincreased the salaries of public officers for the benefit of its ownmembers."). Consistently with that view, it appears that many Americans in the Founding Period werefearful of the British Crown's power to create offices, as well as to fill them.See,e.g.,The Federalist No. 69 at 421 (A. Hamilton) (Clinton Rossiter ed. 1961) ("[t]he king of GreatBritain . . . not only appoints to all offices, but can create offices");Weiss v. United States, 510 U.S. 163, 187 n.2 (1994) (Souter, J., concurring);Freytag v. Comm'r, 501 U.S. at 904 n.4 (Scalia, J.,concurring in judgment); Gordon S. Wood,The Creation of the American Republic 1776-1787 144(1969); Fisher,Constitutional Conflicts between Congress and the President 23(3d ed. 1991). So understood, the Clause would reach offices that were created by the Executiveacting alone.
On yet another view of the Clause, its primary purpose was to discourage the wastefulmultiplication of federal offices. In that connection, at least two delegates to the PhiladelphiaConvention, and one delegate to the Virginia Ratifying Convention, specifically pointed to the dangerthat ambassadorships might be created unnecessarily.SeeNotes of Debates inthe Federal Convention of 1787, Reported by James Madison 178 (Adrienne Koch ed., 1976) (remarks of Mr. Shermanon June 23); id. at 452 (remarks of Mr. Gerry on August 14);see also 10The Documentary History of the Ratification of the Constitution1263-64 (John P. Kaminski et al.eds. 1993) (remarks of Mr. Grayson in Virginia Ratifying Convention). In light of thesecomments, it might again be argued that the Clause reached ambassadorial offices.
6. We note that if the office of Ambassador to Vietnam has not been "created" during the timefor which Representative Peterson was elected, the prohibition on increased "emoluments" in art. I,§ 6, cl. 2 would necessarily be inapplicable. The ineligibility relates to civil offices, "theEmoluments whereof shall have been increased" (emphasis added). If the office does not exist withinthe proscribed time, no emoluments have attached to it, or could have been increased.
7.See John F. O'Connor,The Emoluments Clause: An Anti-Federalist Intruder in a FederalistConstitution, 24 Hofstra L. Rev. 89, 111 (1995) ("Not surprisingly, the question whether Congress hasin fact created a new office rarely has surfaced; statutes creating new federal offices generally are clearenough to settle the matter.").
8.SeeMyers v. United States, 272 U.S. 52, 128-29 (1926);Weiss v. United States, 114 S.Ct. at 764 (Souter, J., concurring); Limitations on Presidential Power to Create a New ExecutiveBranch Entity to Receive and Administer Funds Under Foreign Aid Legislation, 9 Op. O.L.C. 76,77-78 (1985).
9.See generally Fisher,supra note 5, at 39-40.
10. The Appointments Clause states, in part, that the President "shall nominate, and by and withthe Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers andConsuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointmentsare not herein otherwise provided for, and which shall be established by Law . . . . "
11. For the background to Attorney General Cushing's opinion, see Graham H. Stuart,American Diplomatic and Consular Practice 6 (2d ed. 1952).
12.SeeAmbassadors and other Public Ministers, 7 Op. Att'y Gen. at 193-94;see alsoMessages and Papers of the Presidents 58 (JamesD. Richardson ed.1896) (letter from President GeorgeWashington to the Senate, dated June 15, 1789, nominating Short).
Moreover, President Washington reported a conversation with James Madison, in whichMadison concurred in the opinion, given also by John Jay and Thomas Jefferson to Washington, thatthe Senate had "no Constitutional right" to "interfere" with the President's decision "on the places towhich it would be necessary to send persons in the Diplomatic line," or on the"grade" of such persons.The Diary of George Washington, From 1789 to1791 128 (Benson J. Lessing ed., photo reprinted 1978) (1860).
13.See Act of July 27, 1789, ch. 4.
14. Ambassadors and other Public Ministers, 7 Op. Att'y Gen. at 193.
15.Id. at 194. Similarly, James Madison advised President Monroe on May 6, 1822, that itwas his belief that "the practice of the Government had from the beginning been regulated by theidea that the places or offices of public ministers and consuls existed under the law and usages ofnations, and were always open to receive appointments as they might be made under competentauthorities." 1,A Digest of the International Law of the United States § 78 at 583 (Francis Wharton ed. 1886). (Madison therefore rejected the idea that every time an ambassador was sent to aparticular country, the office of ambassador to that country was created anew.Id.
According to an authoritative treatise from the period of the framing of the Constitution, the lawof nations taught that "each Nation possesses both the right to negotiate and haveintercourse with the others, and the reciprocal obligation to lend itself to such intercourse as far ascircumstances will permit it to do so." 3 Emmerich de Vattel,The Law of Nations or The Principles ofNatural Law 362 (1916) (translation of the edition of 1758 by Charles G. Fenwick). Accordingly,because "Nations or sovereign States do not treat with one another directly as corporate entities; norcan their rulers or sovereigns readily meet one another personally in order to negotiate their affairs,"they communicate "through the mediation ofpublic ministers. Thisexpression . . . is particularly applied to those who are appointed to fulfill [public] duties at a foreigncourt . . . . Every sovereign State has, therefore, the right to send and to receive public ministers. Forthey are the necessary agents in the negotiation of the affairs which sovereigns have with one another,and in the maintenance of the intercourse which sovereigns have a right to keep up."Id;see also Henry Wheaton,Elements of International Law § 207 at 243 (1936 reprint of1866 edn.) ("Every independent State has a right to send public ministers to, and receive ministersfrom, any other sovereign State with which it desires to maintain the relations of peace and amity. NoState, strictly speaking, is obliged, by the positive law of nations, to send or receive public ministers,although the usage and comity of nations seemto have established a sort of reciprocal duty in this respect. It is evident, however, that this cannot bemore than an imperfect obligation, and must be modified by the nature and importance of the relationsto be maintained between different States by means of diplomatic intercourse.").
16. There have, however, been instances in which Congress has apparently asserted theauthority to create diplomatic offices. For example, the Act of March 2, 1909, provided that "hereafterno new ambassadorship shall be created unless the same shall be provided for by an Act of Congress." 35 Statutes at Large 672 (1909). Notwithstanding that Act, "President Wilson appointed anambassador to Peru in 1919 without any authorization from the Congress other than that found in theappropriation bill for the Department of State." Graham H. Stuart,American Diplomatic and ConsularPractice at 137.
17. The Foreign Service Act, codified in relevant part as 22 U.S.C. § 3942(a)(1), statesthat "[t]he President may, by and with the advice and consent of the Senate, appoint anindividual . . . as an ambassador at large, as an ambassador, [or] as a minister . . . ." The relevantquestion here is whether the statute should be understood to be a legislative act creating the office ofambassador (and,inter alia, the office of ambassador to Vietnam). Assuming that it could be so read,Mr. Peterson would not be ineligible for the office to which he has been nominated, because that officewould have been created before the beginning of the 104th Congress. (Section 3942(a) was lastamended by Pub. L. No. 102-138, § 141, in 1991.) Inour opinion, however, the section is better understood as merely declaratory of what the constitutionalprocedure for appointing ambassadors is, rather than as a legislative creation of such offices. Thus, thefact that it was enacted before the current Congress would have no bearing on Mr. Peterson's eligibility. Alternatively, the section might conceivably be construed, not as itself creating ambassadorships, but asauthorizingthe President to do so. That reading would also fail to resolve the question at issue,however, because the time at which the Presidentexercised such astatutory grant of authority would be identical with the time at which he exercised hisconstitutional authority to create the office of ambassador to Vietnam.
18. The Recess Appointments Clause states that the President "shall have Power to fill up allVacancies that may happen during the Recess of the Senate, by granting Commissions which shallexpire at the End of their next Session."
19. For the circumstances of Madison's recess appointments and the ensuing controversy, see 6Irving Brant, James Madison 155-57, 242-43 (1961).
20. Senator Bibb also articulated a distinct defense of President Madison's action. According tothis alternative theory, "the office commenced with every independent Power fromthe moment the United States became independent, and authorized the appointment of foreignMinisters, and it will continue to exist so long as we and they continue independent, unlessdestroyed by the termination of the relations which created it. The period at which it should be filled isleft by the Constitution to the discretion of the President." Id. at 699. On this account, it appears thatthe office of ambassador exists as a necessary incident to sovereignty, and thus has existed since theUnited States became independent in 1776.Cf.United States v. Curtiss-Wright Export Corp., 299U.S. 304, 316-18 (1936) (power to maintain diplomatic relations was vested in United States as anincident of external sovereignty upon separation from Great Britain). Were that theory correct, it wouldappear to follow that office for which Representative Peterson was nominated -- the Ambassadorshipto Vietnam -- existed since (at least) the time that diplomaticrelations between the United States and Vietnam became possible, and thus that the office had not been"created" during the term for which he was elected.
21. As Senator Horsey explained his view, the "Occasion" for instituting the mission to Russiawas the Russian Government's offer of March 8, 1813, to mediate between the United States andGreat Britain, and the acceptance of that offer by the Secretary of State on March 11, 1813. Thisoccasion "happened in the recess of the Senate. The office then attached, and with it the vacancy,which was filled and the office perfected by issuing the commissions . . . ."Id. at 713.
22.See Memorandum of LawRe: Appointment of Deputy Special Representative forTrade Negotiations at 5, accompanying Letter to Arthur B. Focke, General Counsel, Bureau of theBudget, from Norbert A. Schlei, Assistant Attorney General, Office of Legal Counsel (Dec. 19, 1962)("the office is created whenever the President determines that the interests of the United States requirediplomatic representation or negotiation"). Madison himself may subsequently have taken a differentview of the matter from that of his defenders in the Senate. In a memorandum of 1834 -- twenty yearsafter the controversy over the recess appointments -- he expressed the opinion that the "place of aforeign minister or consul is not an office in the constitutional sense of the term," basing that conclusionin part on the premisethat "[i]t cannot, as an office, be created by the mere appointment for it, made by the President andSenate, who are to fill, not create offices."Power of the President to appointPublic Ministers and Consuls in the recess of the Senate, 4 Letters and Other Writings of JamesMadison 350 (1865). On this theory, "[t]he place of a foreign minister or consul is to beviewed as created by the law of nations." Id. Were Madison correct in denying that anambassadorship is an "office" in the constitutional sense, no Ineligibility Clause issue wouldarise.
23. The preparations leading up to the creation of the office can be analogized to the legislativeprocess. Congress holds hearings on legislative proposals, conducts debates on them,considers amendments, casts votes on a final bill and presents that bill to the President. All of theseactivities are designed to culminate in the enactment of a bill into law. Nonetheless,exceptional cases aside, a bill does not actually become law until the moment that the Presidentsigns it.See INS v. Chadha, 462 U.S. 919 (1983).
24. In unusual circumstances, the President might depart from this procedure. For example,following the establishment of diplomatic relations, he might byproclamation declare the office ofambassadorship to a particular country to be created, even if he had not appointed a particular personto fill that office.
25.See generally Congressional Research Service, Report for Congress,Vietnam: Proceduraland Jurisdictional Questions Regarding Possible Normalization of U.S. Diplomatic and EconomicRelations (Aug. 4, 1994).
26. See generally Office of the Historian,Principal Officers of the Department of State andUnited States Chiefs of Mission: 1778-1990, Dep't of State Publication 9825, 163 (Jan. 1991).
27.Remarks by the President in Announcing the End of the Trade Embargo on Vietnam and anExchange With Reporters, 30 Weekly Comp. Pres. Doc. 205, 206 (Feb. 3, 1994).
28.Remarks by the President Announcing the Normalization of Diplomatic Relations withVietnam, 31 Weekly Comp. Pres. Doc. 1217 (July 11, 1995).
29. "In order to avoid the unfriendly feeling which might arise through the refusal of a state toreceive a foreign representative it is customary for the sending state to submit in advance the name of itsenvoy to the government of the state to whom he is to be accredited. The procedure of determining inadvance as to whether the envoy will bepersona grata is calledagréation and the approvalagrément." Graham H. Stuart, American Diplomatic and Consular Practiceat 139-40.
30. Indeed, as a matter ofinternational law, it may be that the office of ambassador to Vietnamwill not begin to exist until our representative is "duly accredited and received" as ambassador by theGovernment of Vietnam.Hollander v. Baiz, 41 F. 732, 735(S.D.N.Y.)prohibition denied by 135 U.S. 403 1890).
31.SeeMarbury v. Madison, 5 U.S. (1 Cranch) 137, 155 (1803) (appointment not effectiveuntil commissioning by President);Appointments to Office -- Case of Lieutenant Coxe, 4 Op. Att'yGen. 217, 219 (1843).
32.See Saxbe Hearing at 67 (testimony of Assistant Attorney General Dixon) ("[t]here was adisagreement in the convention concerning this issue and that was because there was acompetition in values. The matter was not viewed as being simple or mechanistic. As Madison said atone point: 'Some gentlemen give too much weight and others too little to this subject.'There was a fear that unless the Constitution did include an ineligibility clause of this sort, that therewould be undue inroads on the independence of the legislature by the Executivein enticements and appointments to the executive branch and that also there might be self-interest in themembers' approach toward salary increases or toward creation of new offices.At the sametime there was also a recurrent concern shared by Madison who was a primary mover of the clauseand also Pinkney, that a total bar would be a disservice to the public and indeed to the executivebranch and judicial branch.") (emphasis added).
33.The Genuine Information Delivered to the Legislature of the State of Maryland Relative tothe Proceedings of the General Convention Lately Held at Philadelphia, By Luther Martin, Esquire(1788),reprinted in 2 Herbert J. Storing, The Complete Anti-Federalist 19, 52 (1981).
34. Similarly, Professor van Alstyne, testifying in a Senate hearing regarding the possibility ofcurative legislation to remove Senator Saxbe's ineligibility to be appointed AttorneyGeneral, noted that
the mechanicalism of article I, section 6, clause 2, has the same virtues and the samevices as similar provisions elsewhere in the document. For along with the virtue of clearand impersonal operation, there is, of course, the shortcoming that legislative technique- that a line drawn in a manner giving conclusive effect to but one or two circumstancesmay often fail to reach a variety of possible corrupt practices that a more generalstandard would tend to reach. It is clear, for instance, . . . that a Senator orRepresentative nearing the end of his term might be induced to vote to create a newoffice or to raise the emoluments in an existing one, expecting in return for his vote atonce to be appointed to that office the instant his term expires. Yet, the clause doesnot reach that point.Saxbe Hearing at 51.
35. Senate Memo at 4.
36. Other instances in which Presidents have made nominations for offices not yet in beinginclude: (1) the nomination on January 20, 1989, of Edward Derwinski to be the first Secretaryof Veterans Affairs, 135 Cong. Rec. 321 (1989), under a statute that precluded appointment until afterJanuary 21, 1989, 38 U.S.C. § 301 note (Pub. L. No. 100-527, § 18(b), 102Stat. 2635, 2648 (1988)); (2) the nomination on June 8, 1979, of the first Federal Inspector for theAlaska Natural Gas Transportation System, 125 Cong. Rec. 14,209 (1979), under ReorganizationPlan No. 1 of 1979, 5 U.S.C. app., 93 Stat. 1373 (1979), which becameeffective on July 1, 1979; and (3) the nomination on November 16, 1970, of William D. Ruckelshaus tobe the first Administrator of the Environmental Protection Agency, 116 Cong. Rec. 37347 (1970),under a Reorganization Plan creating the office as of December 2, 1970, Reorganization Plan No. 3 of1970, 5 U.S.C. app., 84 Stat. 2086 (1970).
37. Senate Memo at 4.
