CRS Annotated Constitution

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Legislation Increasing Duties of an Officer.—Finally, Congress may devolve upon one already in office additional duties which are germane to his office without thereby “rendering it necessary that the incumbent should be again nominated and appointed.” Such legislation does not constitute an attempt by Congress to seize the appointing power.499

Stages of Appointment Process

Nomination.—The Constitution appears to distinguish three stages in appointments by the President with the advice and consent of the Senate. The first is the “nomination” of the candidate by the President alone; the second is the assent of the Senate to the candidate’s “appointment;” and the third is the final appointment and commissioning of the appointee, by the President.500

Senate Approval.—The fact that the power of nomination belongs to the President alone prevents the Senate from attaching[p.520]conditions to its approval of an appointment, such as it may do to its approval of a treaty. In the words of an early opinion of the Attorney General: “The Senate cannot originate an appointment. Its constitutional action is confined to the simple affirmation or rejection of the President’s nominations, and such nominations fail whenever it rejects them. The Senate may suggest conditions and limitations to the President, but it cannot vary those submitted by him, for no appointment can be made except on his nomination, agreed to without qualifications or alteration.”501 This view is borne out by early opinion,502 as well as by the record of practice under the Constitution.

When Senate Consent Is Complete.—Early in January, 1931, the Senate requested President Hoover to return its resolution notifying him that it advised and consented to certain nominations to the Federal Power Commission. In support of its action the Senate invoked a long– standing rule permitting a motion to reconsider a resolution confirming a nomination within “the next two days of actual executive session of the Senate” and the recall of the notification to the President of the confirmation. The nominees involved having meantime taken the oath of office and entered upon the discharge of their duties, the President responded with a refusal, saying: “I cannot admit the power in the Senate to encroach upon the executive functions by removal of a duly appointed executive officer under the guise of reconsideration of his nomination.” The Senate thereupon voted to reconsider the nominations in question, again approving two of the nominees, but rejecting the third, against whom it instructed the District Attorney of the District of Columbia to institute quo warranto proceedings in the Supreme Court of the District. In United States v. Smith,503 the Supreme Court overruled the proceedings on the ground that the Senate had never before attempted to apply its rule in the case of an appointee who had already been installed in office on the faith of the Senate’s initial consent and notification to the President. In 1939, the late President Roosevelt rejected a similar demand by the Senate, an action that was unchallenged.504

Section 3. The President * * * shall Commission all the Officers of the United States.[p.521]

Commissioning the Officer.—This, as applied in practice, does not mean that he is under constitutional obligation to commission those whose appointments have reached that stage but merely that it is he and no one else who has the power to commission them, which he may do at his discretion. The sealing and delivery of the commission is, on the other hand, by the doctrine of Marbury v. Madison, in the case both of appointee by the President and Senate and by the President alone, a purely ministerial act which has been lodged by statute with the Secretary of State and the performance of which may be compelled by mandamus unless the appointee has been in the meantime validly removed.505 By an opinion of the Attorney General many years later, however, the President, even after he has signed a commission, still has a locus poenitentiae and may withhold it; nor is the appointee in office till he has this commission.506 This is probably the correct doctrine.507


Clause 3. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Recess Appointments

Setting out from the proposition that the very nature of the executive power requires that it shall always be “in capacity for action,” Attorneys General early came to interpret “happen” to mean “happen to exist,” and long continued practice securely establishes this construction. It results that whenever a vacancy may have occurred in the first instance, or for whatever reason, if it still continues after the Senate has ceased to sit and so cannot be consulted, the President may fill it in the way described.508 But a Senate “recess” does not include holidays, or very brief temporary adjourn[p.522]ments,509 while by an act of Congress, if the vacancy existed when the Senate was in session, the ad interim appointee, subject to certain exemptions, may receive no salary until he has been confirmed by the Senate.510

Judicial Appointments.—Federal judges clearly fall within the terms of the recess–appointments clause. But, unlike with other offices, a problem exists. Article III judges are appointed “during good behavior,” subject only to removal through impeachment. A judge, however, who is given a recess appointment may be “removed” by the Senate’s failure to advise and consent to his appointment; moreover, on the bench, prior to Senate confirmation, she may be subject to influence not felt by other judges. Nonetheless, a constitutional attack upon the status of a federal district judge, given a recess appointment and then withdrawn as a nominee, was rejected by a federal court.511

Ad Interim Designations.—To be distinguished from the power to make recess appointments is the power of the President to make temporary or ad interim designations of officials to perform the duties of other absent officials. Usually such a situation is provided for in advance by a statute which designates the inferior officer who is to act in place of his immediate superior. But in the lack of such provision, both theory and practice concede the President the power to make the designation.512


499 Shoemaker v. United States, 147 U.S. 282, 301 (1893).
500 Marbury v. Madison, 1 Cr. (5 U.S.) 137, 155–156 (1803) (Chief Justice Marshall). Marshall’s statement that the appointment “is the act of the President,” conflicts with the more generally held and sensible view that when an appointment is made with its consent, the Senate shares the appointing power. 3 J. Story, Commentaries on the Constitution of the United States (Boston: 1833), 1525; Matter of Hennen, 13 Pet. (38 U.S.) 230, 259 (1839).
501 3 Atty. Gen.188 (1837).
502 3 J. Story, Commentaries on the Constitution of the United States (Boston: 1833), 1525–1526; 5 Works of Thomas Jefferson, P. Ford ed., (New York: 1904), 161–162; 9 Writings of James Madison, G. Hunt ed. (New York: 1910), 111–113.
503 286 U.S. 6 (1932).
504 E. Corwin, op. cit., n.44, 77.
505 Marbury v. Madison, 1 Cr. (5 U.S.) 137, 157–158, 173 (1803).
506 12 Atty. Gen.306 (1867).
507 It should be remembered that, for various reasons, Marbury got neither commission nor office. The case assumes, in fact, the necessity of possession of his commission by the appointee.
508 See the following Ops. Atty. Gen.: 1:631 (1823); 2:525 (1832); 3:673 (1841); 4:523 (1846); 10:356 (1862); 11:179 (1865); 12:32 (1866); 12:455 (1868); 14:563 (1875); 15:207 (1877); 16:523 (1880); 18:28 (1884); 19:261 (1889); 26:234 (1907); 30:314 (1914); 33:20 (1921). In 4 Atty. Gen.361,363 (1845), the general doctrine was held not to apply to a yet unfilled office which was created during the previous session of Congress, but this distinction was rejected in the following Ops. Atty. Gen.: 12:455 (1868); 18:28 (1884); and 19:261 (1889). In harmony with the opinions is United States v. Allocco, 305 F.2d 704 (2d Cir. 1962). For the early practice with reference to recess appointments, see 2 G. Haynes, The Senate of the United States, (Boston: 1938), 772–778.
509 23 Atty. Gen.599 (1901); 22 Atty. Gen.82 (1898). How long a “recess” must be to be actually a recess, a question here as in the pocket veto area, is uncertain. 3 L. C.311,314 (1979). A “recess,” however, may be merely “constructive,” as when a regular session succeeds immediately upon a special session. It was this kind of situation that gave rise to the once famous Crum incident. See 3 W. Willoughby, op. cit., n.294, 1508–1509.
510 5 U.S.C. Sec. 5503 . The provision has been on the books, in somewhat stricter form, since 12 Stat. 646 (1863).
511 United States v. Woodley, 751 F.2d 1008 (9th Cir. 1985) (en banc), cert. den., 475 U.S. 1048 (1986). The opinions in the court of appeals provide a wealth of data on the historical practice of giving recess appointments to judges, including the developments in the Eisenhower Administration, when three Justices, Warren, Brennan, and Stewart, were so appointed and later confirmed after participation on the Court. The Senate in 1960 adopted a “sense–of–the–Senate” resolution suggesting the practice was not a good idea. 106 Cong. Rec. 18130–18145 (1960).
512 See the following Ops. Atty. Gen.: 6:358 (1854); 12:32, 41 (1866); 25:258 (1904); 28:95 (1909); 38:298 (1935).
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