Appointing Ambassadors, Ministers, and Consuls

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ArtII.S2.C2.2.1.1 Appointing Ambassadors, Ministers, and Consuls

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 term “ambassadors and other public ministers,” comprehends “all officers having diplomatic functions, whatever their title or designation.” 1 It was originally assumed that such offices were established by the Constitution itself, by reference to the Law of Nations, with the consequence that appointments might be made to them whenever the appointing authority—the President and Senate—deemed desirable.2 During the first sixty-five years of the Government, Congress passed no act purporting to create any diplomatic rank, the entire question of grades being left with the President. Indeed, during the administrations of Washington, Adams and Jefferson, and the first term of Madison, no mention occurs in any appropriation, even of ministers of a specified rank at this or that place, but the provision for the diplomatic corps consisted of so much money “for the expenses of foreign intercourse,” to be expended at the discretion of the President. In Madison’s second term, the practice was introduced of allocating special sums to the several foreign missions maintained by the Government, but even then the legislative provisions did not purport to curtail the discretion of the President in any way in the choice of diplomatic agents.

In 1814, however, when President Madison appointed, during a recess of the Senate, the Commissioners who negotiated the Treaty of Ghent, the theory on which the above legislation was based was drawn into question. Inasmuch, it was argued, as these offices had never been established by law, no vacancy existed to which the President could constitutionally make a recess appointment. To this argument, it was answered that the Constitution recognizes “two descriptions of offices altogether different in their nature, authorized by the constitution—one to be created by law, and the other depending for their existence and continuance upon contingencies. Of the first kind, are judicial, revenue, and similar offices. Of the second, are Ambassadors, other public Ministers, and Consuls. The first descriptions organize the government and give it efficacy. They form the internal system, and are susceptible of precise enumeration. When and how they are created, and when and how they become vacant, may always be ascertained with perfect precision. Not so with the second description. They depend for their original existence upon the law, but are the offspring of the state of our relations with foreign nations, and must necessarily be governed by distinct rules. As an independent power, the United States have relations with all other independent powers; and the management of those relations is vested in the Executive.” 3

By the opening section of the act of March 1, 1855, it was provided that “from and after the thirtieth day of June next, the President of the United States shall, by and with the advice and consent of the Senate, appoint representatives of the grade of envoys extraordinary and ministers plenipotentiary,” with a specified annual compensation for each, “to the following countries. . . .” In the body of the act was also this provision: “The President shall appoint no other than citizens of the United States, who are residents thereof, or who shall be abroad in the employment of the government at the time of their appointment. . . .” 4 The question of the interpretation of the act having been referred to Attorney General Cushing, he ruled that its total effect, aside from its salary provisions, was recommendatory only. It was “to say, that if, and whenever, the President shall, by and with the advice and consent of the Senate, appoint an envoy extraordinary and minister plenipotentiary to Great Britain, or to Sweden, the compensation of that minister shall be so much and no more.” 5

This line of reasoning is only partially descriptive of the facts. The Foreign Service Act of 1946,6 et seq. pertaining to the organization of the foreign service, diplomatic as well as consular, contains detailed provisions as to grades, salaries, promotions, and, in part, as to duties. Under the terms thereof the President, by and with the advice and consent of the Senate, appoints ambassadors, ministers, foreign service officers, and consuls, but in practice the vast proportion of the selections are made in conformance to recommendations of a Board of the Foreign Service.

Presidential Diplomatic Agents

What the President may have lost in consequence of the intervention of Congress in this field of diplomatic appointments, he has made good through his early conceded right to employ, in the discharge of his diplomatic function, so-called “special,” “personal,” or “secret” agents without consulting the Senate. When President Jackson’s right to resort to this practice was challenged in the Senate in 1831, it was defended by Edward Livingston, Senator from Louisiana, to such good purpose that Jackson made him Secretary of State. “The practice of appointing secret agents,” said Livingston, “is coeval with our existence as a nation, and goes beyond our acknowledgment as such by other powers. All those great men who have figured in the history of our diplomacy, began their career, and performed some of their most important services in the capacity of secret agents, with full powers. Franklin, Adams, Lee, were only commissioners; and in negotiating a treaty with the Emperor of Morocco, the selection of the secret agent was left to the Ministers appointed to make the treaty; and, accordingly, in the year 1785, Mr. Adams and Mr. Jefferson appointed Thomas Barclay, who went to Morocco and made a treaty, which was ratified by the Ministers at Paris.”

“These instances show that, even prior to the establishment of the Federal Government, secret plenipotentiaries were known, as well in the practice of our own country as in the general law of nations: and that these secret agents were not on a level with messengers, letter carriers, or spies, to whom it has been found necessary in argument to assimilate them. On the 30th March, 1795, in the recess of the Senate, by letters patent under the great broad seal of the United States, and the signature of their President, (that President being George Washington,) countersigned by the Secretary of State, David Humphreys was appointed commissioner plenipotentiary for negotiating a treaty of peace with Algiers. By instructions from the President, he was afterwards authorized to employ Joseph Donaldson as agent in that business. In May, of the same year, he did appoint Donaldson, who went to Algiers, and in September of the same year concluded a treaty with the Dey and Divan, which was confirmed by Humphreys, at Lisbon, on the 28th November in the same year, and afterwards ratified by the Senate, and an act passed both Houses on 6th May, 1796, appropriating a large sum, twenty-five thousand dollars annually, for carrying it into effect.” 7

The precedent afforded by Humphreys’ appointment without reference to the Senate has since been multiplied many times,8 as witness the mission of A. Dudley Mann to Hanover and other German states in 1846, of the same gentleman to Hungary in 1849, of Nicholas Trist to Mexico in 1848, of Commodore Perry to Japan in 1852, of J. H. Blount to Hawaii in 1893. The last named case is perhaps the most extreme of all. Blount, who was appointed while the Senate was in session but without its advice and consent, was given “paramount authority” over the American resident minister at Hawaii and was further empowered to employ the military and naval forces of the United States, if necessary to protect American lives and interests. His mission raised a vigorous storm of protest in the Senate, but the majority report of the committee which was created to investigate the constitutional question vindicated the President in the following terms: “A question has been made as to the right of the President of the United States to dispatch Mr. Blount to Hawaii as his personal representative for the purpose of seeking the further information which the President believed was necessary in order to arrive at a just conclusion regarding the state of affairs in Hawaii. Many precedents could be quoted to show that such power has been exercised by the President on various occasions, without dissent on the part of Congress or the people of the United States. . . . These precedents also show that the Senate of the United States, though in session, need not be consulted as to the appointment of such agents, . . . .” 9 The continued vitality of the practice is attested by such names as Colonel House, the late Norman H. Davis, who filled the role of “ambassador at large” for a succession of administrations of both parties, Professor Philip Jessup, Mr. Averell Harriman, and other “ambassadors at large” of the Truman Administration, and Professor Henry Kissinger of the Nixon Administration.

How is the practice to be squared with the express words of the Constitution? Apparently, by stressing the fact that such appointments or designations are ordinarily merely temporary and for special tasks, and hence do not fulfill the tests of “office” in the strict sense. In the same way the not infrequent practice of Presidents of appointing Members of Congress as commissioners to negotiate treaties and agreements with foreign governments may be regularized, notwithstanding the provision of Article I, § 6, clause 2 of the Constitution, which provides that “no Senator or Representative shall . . . be appointed to any civil Office under the Authority of the United States, which shall have been created,” during his term; and no officer of the United States, “shall be a Member of either House during his Continuance in Office.” 10 The Treaty of Peace with Spain, the treaty to settle the Bering Sea controversy, the treaty establishing the boundary line between Canada and Alaska, were negotiated by commissions containing Senators and Representatives.

Federal v. Territorial Officers

Not every office created by Congress is a federal office subject to the strictures of Article II. In Financial Oversight and Management Board for Puerto Ricov. Aurelius Investment, LLC, the Court considered the constitutionality of an oversight board (the Board) that Congress created in 2016 to manage the financial issues of the Commonwealth of Puerto Rico, a U.S. territory.11 et seq.). Writing for the Court, Justice Breyer explained that provisions in Articles I and IV of the Constitution “empower Congress to create local offices for the District of Columbia and for Puerto Rico and the Territories.” 12 Based on the Constitution's text, structure, and history, the Court reasoned that creating a local office “does not automatically make its holder an 'Officer of the United States'” within the meaning of Article II's Appointments Clause.13 At the same time, an official's location in a territory does not, standing alone, exempt that office from the Appointment Clause's reach.14 Instead, when Congress exercises its Article I or IV powers to create a local or territorial office, the Court examines whether Congress vested that official with “primarily local powers and duties.” 15 If so, the official is not an “Officer of the United States” subject to the Appointments Clause.16

Based on the text of the 2016 law, the Aurelius Court concluded that when Congress created the Board, it exercised its ArticleIV powers under the Territories Clause.17 And the Court concluded that the powers and duties that Congress assigned to the Board were “primarily local in nature.” 18 Justice Breyer cited several factors that “taken together” demonstrated the Board's local nature: (1) the government of Puerto Rico paid the Board's expenses; (2) the Board developed fiscal plans with the elected government of Puerto Rico and could initiate bankruptcy proceedings for Puerto Rico; and (3) the Board's “broad investigatory powers” —akin to what federal officers exercise—were “backed by Puerto Rican, not federal, law.” 19 Accordingly, the Court held that Board members were territorial officers, not federal “Officers,” and thus their selection need not comply with the Appointments Clause.20

7 Ops. Atty. Gen. 168 (1855). back
It was so assumed by Senator William Maclay. The Journal of William Maclay 109–10 (E. Maclay ed., 1890). back
26 Annals of Cong. 694–722 (1814) (quotation appearing at 699); 4 Letters and Other Writings of James Madison 350–353 (1865). back
10 Stat. 619, 623. back
7 Ops. Atty. Gen. 186, 220 (1855). back
60 Stat. 999, superseded by the Foreign Service Act of 1980, Pub. L. No. 96-465, 94 Stat. 2071, 22 U.S.C. §§ 3901 et seq. back
11 T. Benton, Abridgement of the Debates of Congress 221 (1860). back
S. Misc. Doc, 109, 50th Congress, 1st Sess. (1888), 104. back
S. Rep. No. 227, 53d Congress, 2d Sess. (1894), 25. At the outset of our entrance into World War I President Wilson dispatched a mission to “Petrograd,” as it was then called, without nominating the Members of it to the Senate. It was headed by Mr. Elihu Root, with “the rank of ambassador,” while some of his associates bore “the rank of envoy extraordinary.” back
See 2 G. Hoar, Autobiography of Seventy Years 48–51 (1903). back
140 S. Ct. 1649, 1655–56 (2020). Congress created the Board as part of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), Pub. L. No. 114-187, 130 Stat. 549 (2016) (codified at 48 U.S.C. § 2101 et seq.). back
Aurelius Invest., LLC, 140 S. Ct. at 1659. back
Id. at 1658–59. back
Id. at 1657–58. back
Id. at 1661. back
Id. back
Id. at 1656; see also U.S. Const. art. IV, § 3, cl. 2. back
Aurelius Invest., LLC, 140 S. Ct. at 1662. back
Id. at 1662. back
Id. at 1662–63. back

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