Appointments Clause – Article 2 §2.2

On Wednesdays we study the Constitution. These days, I’m learning about the second article of seven, which deals with the presidency. Last week I looked at Article 2 §2.2, the treaty-making clause. This week it’s more Article 2 §2.2. This part is about presidential appointments. (Not the calendar kind.)

Article 2 §2.2

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.

Ambassadors and Public Ministers

This appears to be a rare example of the legislative branch encroaching on the executive. For the first several presidencies, Congress appropriated money for “foreign intercourse,” which the president spent as he saw fit. During Madison’s second term, Congress began to allocate money for existing foreign missions. Then, in 1814, while the Senate was on recess, Madison appointed the commission who would negotiate the Treaty of Ghent. Suddenly everyone became very interested in the phrase “and which shall be established by Law.” Could there be a vacancy to fill if no law established the role? Everyone agreed the Constitution is clear that the creation of an office and appointment to that office are not the same thing.

Wonky arguments ensued. In the end, folks decided there were two types of offices – one established law, and one established as a result of contingencies. By 1855, the law stated fixed salaries for “envoys extraordinary and ministers plenipotentiary” (aka, ambassadors and heads of diplomatic missions) appointed by the president. The Foreign Service Act of 1946 contains detailed provisions for foreign service employee grades, salaries, promotions, and even some duties. In establishing an office, Congress has also the power to determine the qualifications of the officer and therefore limits the range of choice of the appointing power. Technically, the President still appoints ambassadors, ministers, foreign service officers, and consuls. Practically, most of them are assigned based on recommendations by a Board of the Foreign Service.

There are limits to how much Congress can take over appointments, though. Buckley v. Valeo might be better known for defining campaign contributions as “free speech,” but it also blocked Congress from inserting itself into the Federal Election Commission appointment and confirmation process.

Diplomatic Agents

Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone

What the president lost in control over diplomatic offices, he gained in spades with the right to appoint “agents” without even consulting Congress. The Senate challenged President Jackson’s unauthorized use of secret agents in 1831. But the Senator from Louisiana successfully defended Jackson’s actions. In return, Jackson made him Secretary of State. Nice.

While the language used in the defense sounds like they’re talking about spies, there are some pretty famous examples of this sort of appointment. Thanks to this clause, the president, without consulting Congress, assigned such tasteful missions as Nicholas Trist’s to Mexico in 1848, Commodore Perry to Japan in 1852, and J. H. Blount to Hawaii in 1893. Some of these diplomatic agents have even greater authority and discretion in fulfilling their tasks than ambassadors. But the practice continues because those tasks are too irregular to constitute an “office.”

Inferior Officers

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.

So who are inferior officers, and what departments can hold appointing powers? There’s been some legal history on that, and some back-and-forth on the answers. Most recently (finally?) the case of Edmond v. United States found the importance of the responsibilities assigned an officer, the fact that duties were limited, that jurisdiction was narrow, and that tenure was limited, are all factors but are also subjective and not definitive. Instead, they decided an inferior officer must by definition have a superior officer. Therefore, anyone supervised by an appointed officer must be an inferior officer. Even so, bureaucratic structures are now complicated enough that the court has not always been in agreement about how to apply the definition. See the Annotated Constitution for details (start around p. 570).

Miscellanea

The Annotated Constitution contains dozens of pages outlining issues loosely related to this clause that I haven’t even touched on. But you don’t need them to understand the clause itself. And I’m getting tired. So I’ll just briefly touch on them here. If anything sparks your curiosity, I hope you’ll click through and read the relevant passages in the Annotated Constitution. Maybe even look up some of the sources it cites to satisfy your curiosity. If you actually do, I’d love to run your guest post exploring the subject.

Officer Conduct

Notice that the clause only addresses appointments of officers. Congress is generally in charge of officers’ conduct while in office (start with the Civil Service Act of 1883 for more) as well as defining just cause for removal from office (I’m sure this question has relevance to our current administration; start with the Lloyd-La Follette Act to learn more about it, then proceed to Myers v. United States for more on the sketchy history of the president’s role in removal).

Watergate

You might want to skip ahead to read about Watergate case, which sounds eerily familiar today. A few key extracts from the Annotated Constitution (p. 582) will give you a taste:

Congress vested in the Attorney General the power to conduct the criminal litigation of the Federal Government … Pursuant to presidential direction, the Attorney General designated a Watergate Special Prosecutor with broad power to investigate and prosecute offenses arising out of the Watergate break-in, the 1972 presidential election, and allegations involving the President, members of the White House staff, or presidential appointees… regulations provided that the Special Prosecutor “will not be removed from his duties except for extraordinary improprieties on his part.”

…

On October 20, following the resignations of the Attorney General and the Deputy Attorney General, the Solicitor General as Acting Attorney General formally dismissed the Special Prosecutor and three days later rescinded the regulation establishing the office.

…

In subsequent litigation, a federal district court held that the firing by the Acting Attorney General had violated the regulations, which were in force at the time and which had to be followed until they were rescinded.

As Rosencrantz and Guildenstern said, “We’ve been here before.”

Political Activity

Related to the “officers’ conduct” issue is the question of political activity. This is a little bit about propriety related to abusing the platform of an official, but also gets dicey when you start defining appropriate politics. To learn about the “Loyalty Issue” start with the Hatch Act of 1939.

Financial Disclosure

The Ethics in Government Act of 1978 requires high-level federal personnel to make detailed annual disclosures of their personal financial affairs to:

enhance public confidence, demonstrate the integrity of government employees, deter and detect conflicts of interest, discourage individuals with questionable sources of income from entering government, and to facilitate public appraisal of government employees’ performance in light of their personal financial interests.

But nobody cares about the president’s tax returns.

Presidential Privilege

Speaking of things the president doesn’t want us to know, there is the question of “presidential privilege.” This does not refer to being born a rich, white male whose parents hid millions of dollars in his diapers trust accounts and paper corporations. It refers to defines the authority of the president to withhold documents or information the legislative or judicial branch of the government. Like most privilege, it’s bogus; there is no such provision in the Constitution. But there is a long history of presidents resisting actions to require subordinates to divulge communications they regard as confidential.

It starts on page 587 of the Annotated Constitution, touches on private access to government information two pages later and gets really juicy with grand juries around 591. This all seems very timely. But I’m already pushing 1500 words just on the second half of this clause. I doubt anyone has even read this far.