Simone Lawson
The Appointments Clause of the United States Constitution, found in Article II, Section 2, Clause 2, grants the President the authority to nominate and appoint public officials, with the advice and consent of the Senate. This clause ensures a separation of powers between the President and the Senate, with the President having plenary power to nominate and the Senate having the power to reject or confirm nominees. The President's power to nominate is balanced by the Senate's role in providing advice and consent, which can be seen as a form of accountability to prevent tyranny. The Appointments Clause also distinguishes between principal officers, who must be appointed by the President with Senate confirmation, and inferior officers, whose appointment can be delegated by Congress to the President, judiciary, or department heads. This clause has been the subject of Supreme Court cases, such as Buckley v. Valeo in 1976, which interpreted the requirements and highlighted the structural makeup of the federal government and the balance of power between its branches.
| Characteristics | Values |
|---|---|
| Power to nominate | The president has plenary power to nominate political appointees |
| Power to reject or confirm a nominee | The Senate has the power to reject or confirm a nominee through its advice and consent provision |
| Power to appoint judges and civil officers | The Senate and the president share this power |
| Power to appoint "inferior officers" | The president has the power to appoint inferior officers, such as district court clerks, federal supervisors of elections, and independent counsels |
| Power to grant reprieves and pardons | The president has the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment |
| Power to fill vacancies during Senate recess | The president has the power to fill vacancies that occur during the Senate recess by granting commissions that expire at the end of the next session |
| Power to make treaties | The president has the power to make treaties with the advice and consent of the Senate, provided that two-thirds of the Senators present concur |
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What You'll Learn
The Appointments Clause
The scope and reach of the Appointments Clause have been disputed, with the Supreme Court providing some clarification in cases such as Buckley v. Valeo (1976) and Morrison v. Olson (1988). The Court has interpreted the requirements of the clause as distinguishing between principal and inferior officers, but the specific definition of an "inferior officer" remains a subject of controversy.
In summary, the Appointments Clause grants the President the plenary power to nominate and appoint public officials, subject to the advice and consent of the Senate. This clause maintains a balance of power between the executive and legislative branches and ensures accountability in the appointment of government officials.
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Separation of Powers
The US Constitution is structured around a separation of powers between the three branches of government. Each branch has checks on the other branches. The President's powers are enumerated in Article II, Section 1, Clause 1, known as the vesting clause.
The President has the power to nominate and, with the advice and consent of the Senate, appoint public officials. This is known as the Appointments Clause, which appears at Article II, Section 2, Clause 2. The President's power to nominate is a plenary power, meaning the Senate's role is advisory, and the President is not bound to appoint their own nominee. The Appointments Clause also requires that ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States be appointed in this way.
The President's power to make international treaties is also subject to the proviso of the Senate's advice and consent. This is outlined in the Treaty Clause, which immediately precedes the Appointments Clause in the Constitution.
The Appointments Clause functions as a restraint on Congress and as an important structural element in the separation of powers. The Framers of the Constitution were concerned that Congress might seek to fill offices with their supporters, to the detriment of the President's control over the executive branch.
The President also has the power to fill vacancies that occur during the recess of the Senate, by granting commissions that expire at the end of the next session.
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Advice and Consent
The "advice and consent" provision in the Appointments Clause of the United States Constitution gives the United States Senate the power to be consulted on and approve treaties signed and appointments made by the president to public positions. This power is outlined in Article II, Section 2, Clause 2 of the Constitution, which states that 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".
The Appointments Clause confers plenary power on the president to nominate, and on the Senate to reject or confirm a nominee. The president has the plenary power to nominate political appointees, while the Senate's role is advisory to the nomination, as the president is not bound to their advice. The framers of the Constitution intended for the Senate to advise the president after the nomination has been made, although several presidents have consulted informally with senators over nominations. The "advice" portion of the power has unified with the "consent" portion, and pre-nomination advice is considered optional.
The "advice and consent" provision seeks to ensure accountability and preempt tyranny by providing a check on the president's appointment power. This compromise was reached to balance the desires of those who wanted a strong executive control vested in the president, and those who sought to strengthen the Congress to prevent authoritarian control. The Senate must confirm certain principal officers, including ambassadors, Cabinet secretaries, and federal judges. However, Congress may by law invest the appointment of "inferior" officers to the President alone, courts of law, or heads of departments.
The term "advice and consent" also applies to the Senate's role in the signing and ratification of treaties. The president has the power to make treaties with the advice and consent of the Senate, provided that two-thirds of the Senators present concur.
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Confirmation of Nominees
The Appointments Clause of the United States Constitution empowers the president to nominate and appoint public officials with the advice and consent (confirmation) of the Senate. This clause, found in Article II, Section 2, Clause 2 of the Constitution, outlines the process for confirming presidential nominees.
The president has the plenary power to nominate political appointees, while the Senate's role is advisory to the nomination. The Senate's advice is not mandatory, and the president is not bound to follow it. However, the Senate does have the power to reject or confirm a nominee through its advice and consent provision. This separation of powers between the president and the Senate ensures accountability and pre-empts tyranny.
The Senate must confirm certain principal officers, including ambassadors, Cabinet secretaries, and federal judges. On the other hand, Congress may invest the appointment of "inferior" officers to the President alone, or to courts of law or heads of departments. The distinction between "principal" and "inferior" officers relates to their duties, jurisdiction, and tenure, with "inferior" officers being supervised by those appointed by presidential nomination and Senate confirmation.
The process of confirmation can vary, and in some cases, the Senate's role is limited. For example, the president has the authority to make recess appointments during a recess of the Senate, filling vacancies that occur during that time. Additionally, the Senate's rules regarding the number of votes needed to end debate on a nomination have evolved, with a simple majority now being sufficient in most cases.
The framers of the Constitution intended to prevent Congress from exercising appointment power and filling offices with their supporters. This balance of powers between the president and the Senate ensures a checks-and-balances system, where the president has the responsibility to nominate, and the Senate provides security through its confirmation role.
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Removal of Civil Officers
The President of the United States has the power to nominate and appoint public officials, with the advice and consent of the Senate. This power is known as the Appointments Clause and is outlined in Article II, Section 2, Clause 2 of the US Constitution. The President is also empowered to fill vacancies that may occur during the recess of the Senate, by granting commissions that expire at the end of their next session.
The removal of civil officers, including the President, Vice President, and other civil officers, is addressed in Article II of the Constitution. It states that these officers shall be removed from office through impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors. The President's power to remove civil officers has been a subject of debate and interpretation. The Myers case affirmed the President's power to remove executive officers, specifically addressing the removal of a postmaster, a position considered an executive office. However, in the Wiener v. United States case, the Court ruled that the President lacked the power to remove a commissioner of the War Claims Commission, as their duties were wholly adjudicatory and outside the President's supervision.
The Constitution's ambiguity regarding removal power has led to four possible interpretations. The first interpretation suggests that impeachment is the sole method of removal, as implied by the common law doctrine of "estate in office." The second interpretation states that the power of removal is inherent in the power of appointment, belonging to the appointing authority unless legally restricted. The third interpretation gives Congress the authority to determine the removal power through its legislative powers. The fourth interpretation grants the President the power to remove all officers, except judges, based on their "executive power" and duty to ensure faithful execution of laws.
The Madisonian view, supported by early Presidents like James Madison, George Washington, and Thomas Jefferson, aligns with the second interpretation, asserting that the "executive power" includes the authority to remove executive officials at will. This view is further supported by early practices, with Congress endorsing this interpretation in 1789 and subsequent Presidents exercising this power. The removal power has played a significant role in political disputes, including President Andrew Johnson's impeachment and the firing of FBI Director James Comey.
In recent court cases, such as Free Enterprise Fund v. Public Co. Accounting Oversight Board, Seila Law LLC v. Consumer Financial Protection Bureau, and Collins v. Yellen, the Court endorsed the view that the Constitution grants the President the power to remove. While the Court expressed skepticism about congressional authority to limit removal, it acknowledged that Congress can grant for-cause protections for the removal of certain agency leaders.
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Frequently asked questions
The Appointments Clause of the United States Constitution empowers the president to nominate and, with the advice and consent of the Senate, appoint public officials.
The Senate's role is advisory to the nomination. The Senate can reject or confirm a nominee through its advice and consent provision.
The Supreme Court interprets the requirements as distinguishing between two types of officers: principal officers and inferior officers. Principal officers must be appointed by the President and confirmed by the Senate, while inferior officers can be appointed by the President alone, by the judiciary, or by department heads.
Yes, the President can make recess appointments when the Senate is in adjournment between sessions, or in recess within a session. However, these appointments expire at the end of the following congressional session.
