Article II, Section 2, Clause 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.
The appointment of foreign diplomats stands in some contrast to the appointment of most domestic officers. Given the lack of Supreme Court precedent on the appointment of foreign diplomats, it appears that the appointment of such positions is primarily informed by the historical practice of the political branches. As discussed later, while positions in the federal government occupied by “officers of the United States” are typically established through statute by Congress or via authority delegated by Congress,1 the Executive Branch has generally taken the view that the President enjoys an independent, inherent authority to create diplomatic offices.2 The Executive Branch has espoused this view for most of the Republic’s history,3 and it appears to find support in the earliest governmental practices.4 The first Congresses appropriated money for conducting foreign relations but did not create any diplomatic posts; instead, Presidents simply appointed diplomats, subject to Senate confirmation.5 Generally speaking, it seems that Congress has acceded to this practice.6 In other words, the President has often appointed ambassadors to foreign countries even though no congressional statute explicitly created a particular diplomatic office to fill. At the same time, Congress has exercised some control over the creation and operation of foreign diplomatic posts, including by appropriating specific sums of money for salaries, creating particular offices which are then filled by the President, and imposing requirements for the selection of foreign officers via statute.7
Notwithstanding the practice of presidential appointment of diplomats to posts not necessarily created by statute, those diplomatic offices are generally considered to possess “the delegated sovereign authority to speak and act on behalf of the United States” and their selection must comply with the requirements of the Appointments Clause.8 Writing in the Federalist Papers, Alexander Hamilton noted that ambassadors and other public ministers are “the immediate representatives of their sovereigns” and consuls are the “public agents” of the nation.9 The view that such foreign diplomats constitute officers whose appointment must comply with the Appointments Clause is confirmed by the earliest historical practices of the Republic. For instance, President George Washington nominated William Short to be “chargé d’affaires” 10 for France in 1789, and nominated ministers to London, Paris, and the Hague in 1791.11 All were confirmed by the Senate.12 The Executive Branch has consistently expressed its view that ambassadors, ministers, and consuls constitute officers of the United States whose appointments must conform to the Appointments Clause.13
In contrast, Presidents have routinely dispatched envoys, emissaries, and secret (sometimes known as special) agents on limited diplomatic missions without nominating them to the Senate.14 In one of his first acts as President, George Washington unilaterally appointed Gouverneur Morris as a “special agent” to England to consider the possibility of a commercial treaty.15 Additionally, President Thomas Jefferson unilaterally appointed Senator Daniel Smith to negotiate treaties with the Cherokee Indians.16 The justification for this historical practice appears to be that such agents are not officers of the United States under the Appointments Clause because their duties are limited in duration and exist only for a temporary purpose.17
- See ArtII.S2.C2.3.6 Creation of Federal Offices to ArtII.S2.C2.3.9 Restrictions on Congress’s Authority.
- See Nomination of Sitting Member of Cong. to Be Ambassador to Vietnam, 20 Op. O.L.C. 284, 286 (1996).
- See Ambassadors and Other Pub. Ministers, 7 Op. Att’ys Gen. 186, 189, 193 (1855) ( “Hence, the President has power by the Constitution to appoint diplomatic agents of the United States of any rank, at any place, and at any time, in his discretion, subject always to the constitutional conditions of relation to the Senate. The power to make such appointments is not derived from, and cannot be limited by, any act of Congress, except in so far as appropriations of money are necessary to provide means for defraying the expense of this as of any other business of the Government.” ).
- See 1 A Compilation of the Messages and Papers of the Presidents 58 (James D. Richardson ed., 1896) (letter from President George Washington to the Senate (June 15, 1789)); see Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 Yale L.J. 231, 304–10 (2001) ( “Washington went beyond merely instructing and firing diplomats, however. He also effectively created them.” ); Saikrishna B. Prakash, Imperial From the Beginning 172–73 (2015).
- See Byers v. United States, 22 Ct. Cl. 59, 63–64 (1887) ( “During the whole of the administration of President 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 several appointees. In some cases appropriations have been made for particular officers not to exceed the sums named, still leaving to the Executive a discretion to determine the amounts to be paid.” ) (quoting 7 Op. Att’ys Gen. 186 (1855); David Currie, The Constitution in Congress: The Federalist Period 1789–1801, at 44 (1997); Ambassadors and Other Pub. Ministers, 7 Op. Att’ys Gen. 186, 189, 193 (1855); Nomination of Sitting Member of Cong. to Be Ambassador to Vietnam, 20 Op. O.L.C. 284, 286–92 (1996).
- See Francis v. United States, 22 Ct. Cl. 403, 405 (1887) ( “In the diplomatic service, Congress seems to have practically conceded, whether on constitutional grounds rightly or wrongly taken or otherwise, the duty, power, or right of the Executive to appoint diplomatic agents, of any rank or title, at any time and at any place, subject to such compensation, or none at all, as the legislative branch of the Government should in its wisdom see fit to provide . . . .” ); Byers, 22 Ct. Cl. at 63–64.
- See Byers, 22 Ct. Cl. at 63–67 ( “The Executive, again conforming to the wishes of Congress, duly appointed a secretary of legation to Italy and a consul-general at Rome, superseding the combined office, which thereupon ceased to exist.” ); Foreign Service Act of 1980, 22 U.S.C. § 3942. Congress has sometimes asserted authority in the past to control the creation of diplomatic offices. See Act of Mar. 2, 1909, ch. 235, 35 Stat. 672 ( “[H]ereafter no new ambassadorship shall be created unless the same shall be provided for by an Act of Congress.” ) (repealed 1946). But the Executive Branch has not complied. Graham H. Stuart, American Diplomatic and Consular Practice 137 (1952). Nomination of Sitting Member of Cong. to Be Ambassador to Vietnam, 20 Op. O.L.C. 284, 286 (1996).
- See Officers of the United States Within the Meaning of the Appointments Clause, 31 Op. O.L.C. 73, 91–93 (2007); Nomination of Sitting Member of Cong. to Be Ambassador to Vietnam, 20 Op. O.L.C. 284, 286 (1996); Ambassadors and Other Pub. Ministers of the United States, 7 Op. Att’ys Gen. 186, 190 (1855).
- See The Federalist No. 81 (Alexander Hamilton). See Appointment of Consuls, 7 Op. Att’ys Gen. 242, 248 (1855) ( “We may conveniently regard the word of the Constitution, ‘consuls,’ as the generic designation of a class of public officers existing by public law, and recognised by numerous treaties, who are appointed by their government to reside in foreign countries, and especially in seaports, and other convenient points, to discharge administrative, and sometimes judicial, functions in regard to their fellow-citizens, merchants, mariners, travellers, and others, who dwell or happen to be in such places; to aid, by the authentication of documents abroad, in the collection of the public revenue; and, generally, to perform such other duties as may be assigned to them by the laws and orders of their government. Congress cannot, by legislative act, appoint or remove consuls any more than ministers; but it may increase at will the descriptions of consular officers; it may enlarge or diminish their functions; it may regulate their compensation; it may distinguish between some officers appointable with advice of the Senate, and others appointable by the President alone, or by a Head of Department.” ).
- A chargé d’affaires refers to a “person accredited by letter to the secretary of state or minister for foreign affairs of one country by the secretary of state or minister for foreign affairs of another country, in place of a duly accredited ambassador or minister.” U.S. Dep’t, Foreign Affairs Manual and Handbook, 5 FAH-1 Exhibit H-611, https://fam.state.gov/fam/05fah01/05fah010610.html#X611 (last visited June 22, 2022).
- Joseph P. Harris, The Advice and Consent of the Senate 36–40 (1953).
- Officers of the United States Within the Meaning of the Appointments Clause, 31 Op. O.L.C. 73, 91–93 (2007); Appointment of Consuls, 7 Op. Att’ys Gen. 242, 248 (1855).
- See Officers of the United States Within the Meaning of the Appointments Clause, 31 Op. O.L.C. 73, 102 (2007). But see 22 U.S.C. § 7817 (establishing a “special envoy for North Korean human rights issues” who shall be appointed by the President and confirmed by the Senate).
- Currie, supra note 5, at 44.
- See 7 American State Papers: Indian Affairs 697–98 (1805).
- See Officers of the United States Within the Meaning of the Appointments Clause,31 Op. O.L.C. 73, 102–05 (2007); Edward Corwin, The President: Office and Powers 1787–1957, at 71 (4th ed. 1957); see 39 Annals of Cong. 1407, 1409–10 (1822) (finding by a House Select Committee that Senator Smith’s position negotiating the treaty did not constitute an office); S. Rep. No. 53-227 at 25 (1894) (finding of a Senate Committee that the appointment of J.H. Blount to Hawaii did not require Senate confirmation).