Jonah Patel
The U.S. Constitution's Appointments Clause grants the President the power to nominate Cabinet members, but the Senate must confirm these nominations. While the President can make appointments during Senate recess, the Senate has traditionally been the gatekeeper of Cabinet approvals. The Senate's role in confirming executive appointments is established by the Constitution, but the document is silent on the question of removal power. This has led to conflicts between Presidents and the Senate over control of federal jobs, with the Senate at times rejecting Cabinet nominees.
| Characteristics | Values |
|---|---|
| Who appoints the cabinet? | The President nominates the cabinet members and the Senate confirms them by a simple majority vote. |
| Who can be appointed? | Federal officials are prohibited from appointing their immediate family members to the Cabinet. |
| Who approves the appointments? | The Senate controls the approval process, including the rules that allow a nomination vote to get to the full Senate floor. |
| Can the President bypass the Senate? | The President can make recess appointments when the Senate is in adjournment between sessions or in recess within a session. |
| Can the appointments be rejected? | Yes, the Senate can reject appointments. However, this is rare and has only happened nine times. |
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What You'll Learn
The US Constitution's Appointments Clause
The Appointments Clause of the United States Constitution gives the president the power to nominate and appoint public officials, including cabinet members. However, this power is not absolute, and the Appointments Clause functions as a restraint on the president's power. The Clause requires the "advice and consent" of the United States Senate, which means that the Senate must confirm the president's nominees before they can take office. This process is known as the confirmation process.
The Appointments Clause contemplates three different phases of the appointment process. First, the president nominates an official. Second, the Senate conducts its confirmation process, which may include public hearings and a vote by the full Senate. The third step involves the president appointing and commissioning the appointee.
The purpose of the Appointments Clause is to ensure a separation of powers and to hold the president accountable for his choices in staffing important government positions. The framers of the Constitution were concerned that Congress might try to fill offices with their supporters, undermining the President's control over the executive branch.
The Appointments Clause has been the subject of several Supreme Court cases, including Buckley v. Valeo in 1976, which held that whether an individual wields "significant authority" is a factor in determining if they are an officer under the Clause.
While the majority of cabinet nominations have been confirmed quickly, there have been some notable exceptions where political conflicts have led to the withdrawal or rejection of nominees. For example, in 1989, John Tower, a former senator, was rejected by his former colleagues for the position of defense secretary in the Democrat-controlled Senate.
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The President's power to appoint
While the President has the power to nominate and appoint individuals to these positions, the advice and consent of the Senate are typically required to confirm these appointments. This means that the President's nominees are subject to vetting and approval by the Senate. The Senate plays a crucial role in this process, controlling the rules that allow a nomination vote to reach the full Senate floor. In most cases, the Senate has granted deference to the President's selections, and the majority of cabinet nominations have been swiftly confirmed with little debate.
However, there have been instances of political conflicts between the President and senators, leading to the withdrawal or rejection of nominees. The Senate's scrutiny of cabinet nominees has intensified in recent decades, resulting in some nominations being withdrawn before formal Senate action. The Constitution's Recess Appointment Clause provides the President with the ability to temporarily fill vacancies during Senate recesses, bypassing the Senate's approval process. Nevertheless, the use of recess appointments has declined in recent years due to changes in parliamentary procedures.
It is important to note that the President's appointment power is not without limitations. For example, the Federal Vacancies Reform Act of 1998 outlines specific guidelines for appointing acting heads of departments, and the 1967 Federal Anti-Nepotism statute prohibits federal officials from appointing immediate family members to Cabinet positions. Additionally, the President's nominees must meet certain qualifications and are subject to Senate confirmation hearings, where they may be approved, disapproved, or receive no recommendation.
In conclusion, the President's power to appoint is a significant aspect of the US political system, and it is outlined in the Constitution's Appointments Clause. While the President has the authority to nominate and appoint individuals to various positions, the advice and consent of the Senate play a crucial role in confirming these appointments. The dynamic between the President and the Senate in the appointment process has evolved over time, with both sides exerting influence and, at times, clashing over nominations.
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The Senate's power to approve
The U.S. Constitution's Appointments Clause grants the President the power to nominate Cabinet members, but the Senate must approve these nominations. While the Constitution does not require a formal Cabinet, it authorises the President to seek advice from the principal officers of the various departments. The President's nominees for Cabinet members are subject to the advice and consent of the Senate, which means they must be confirmed by a majority vote.
However, there have been instances of political and partisan conflicts between the President and Senators, leading to the withdrawal or rejection of nominees. The Senate's scrutiny of Cabinet nominees in the late 20th and early 21st centuries has resulted in some nominations being withdrawn before formal action was taken. Only nine Cabinet nominees have been rejected in a full Senate vote.
The Senate's approval process includes committees holding public hearings and requiring nominees to appear in person. These committees can report nominees to the full Senate with a recommendation to approve or not approve, or with no recommendation. In rare cases, committees have voted not to report a nominee to the full Senate, effectively killing the nomination.
The President can circumvent the confirmation process by making recess appointments when the Senate is in adjournment or recess. These appointments are temporary and expire at the end of the following congressional session or earlier in certain circumstances.
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The history of cabinet rejections
The Appointments Clause in the US Constitution allows the President to nominate Cabinet members, but the Senate controls the confirmation process. While the overwhelming majority of cabinet nominations have been swiftly confirmed, there have been some notable rejections throughout history.
In 1789, President George Washington's nomination of Benjamin Fishbourn to the post of naval officer for the Port of Savannah was rejected by the Senate. In 1833, President Andrew Jackson's choice for Secretary of the Treasury, Roger B. Taney, was rejected when the Senate majority shifted to his opponents. In 1843, President John Tyler's nominee for Secretary of the Treasury, Caleb Cushing, was rejected by a vote of 19-27 due to his contentious relationship with the Senate over his vetoes of legislation. Tyler's nominee for Secretary of the Navy, David Henshaw, was also rejected in 1844 by a vote of 8-34 after Navy officers objected to his plans to combat sectional divisions.
In 1925, President Calvin Coolidge's nomination of Charles B. Warren as Attorney General was rejected by a vote of 39-41, with Democrats and insurgent Republicans uniting against him due to his association with the Sugar Trust, which raised concerns about his ability to enforce federal antitrust laws. This was the last time a President's Cabinet nominee of the same party was rejected until 1959, when President Dwight D. Eisenhower nominated Lewis Strauss as Secretary of Commerce in a recess appointment.
In 1989, President George H.W. Bush's nomination of former Senator John Tower as Defense Secretary was rejected by a vote of 47-53. Tower's nomination was marred by allegations of drunkenness, womanizing, and ties with defense contractors, and he became the first former senator to be turned down by his Senate colleagues for a cabinet post.
While cabinet rejections by the Senate have been rare, there have been instances where nominees have withdrawn during the confirmation process due to various controversies or opposition from their own party.
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The recess appointment process
Presidents have occasionally used the recess appointment process to circumvent the standard confirmation process and appoint individuals who might face challenges in receiving Senate confirmation. However, in modern times, the Senate remains in session almost year-round, making recess appointments less necessary for government function. Additionally, the Supreme Court's 2014 ruling in NLRB v. Noel Canning imposed restrictions on the President's power to make recess appointments, requiring the Senate to recess for at least ten days before such appointments can be made.
Several examples of the recess appointment process being used include:
- President George H. W. Bush appointing Lawrence Eagleburger as Secretary of State during a recess in 1992.
- President Bill Clinton making 139 recess appointments during his presidency.
- President George W. Bush making 171 recess appointments during his time in office.
- President Barack Obama making 32 recess appointments before the Supreme Court curtailed the practice in 2014.
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Frequently asked questions
Yes, the cabinet must be approved by the Senate, which is the upper house of the United States Congress.
The President nominates individuals to the cabinet and the Senate vets and confirms them by a simple majority vote.
Yes, the President can use a constitutional power called recess appointments to bypass the Senate and move nominees through quickly. However, such appointments expire at the end of the following congressional session.
The overwhelming majority of cabinet nominations have been confirmed quickly with little debate. However, there have been instances of political and partisan conflicts between the President and senators, leading to the withdrawal or rejection of nominees. Senate records show that only nine Cabinet nominees have been rejected once their nomination made it to a full floor vote.
There are concerns about the influence of political parties over the nomination process and the power of the Senate to control the process. There are also concerns about the constitutionality of having members of Congress in the line of succession, as some argue that the term "officer" excludes members of Congress.
