Legal Requirement When Appointing and Officer
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 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.1
The fact that the power of nomination belongs to the President alone prevents the Senate from attaching 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.” 2 This view is borne out by early opinion,3 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,4 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, President Roosevelt rejected a similar demand by the Senate, an action that went unchallenged.5
The power to commission officers, as applied in practice, does not mean that the President 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, and that he may do so at his discretion. Under the doctrine of Marbury v. Madison, the sealing and delivery of the commission is a purely ministerial act which has been lodged by statute with the Secretary of State, and which may be compelled by mandamus unless the appointee has been in the meantime validly removed.6 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.7 This is probably the correct doctrine.8
- Marbury v. Madison, 5 U.S. (1 Cr.) 137, 155–56 (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 1525 (1833); In re Hennen, 38 U.S. (13 Pet.) 230, 259 (1839).
- 3 Ops. Atty. Gen. 188 (1837).
- 3 J. Story, supra at 1525-26; 5 Works of Thomas Jefferson 161–62 (P. Ford ed., 1904); 9 Writings of James Madison 111–13 (G. Hunt ed., 1910).
- 286 U.S. 6 (1932).
- E. Corwin, supra at 77.
- Marbury v. Madison, 5 U.S. (1 Cr.) 137, 157–58, 173 (1803). The doctrine applies to presidential appointments regardless of whether Senate confirmation is required.
- 12 Ops. Atty. Gen. 306 (1867).
- For various reasons, Marbury got neither commission nor office. The case assumes, in fact, the necessity of possession of his commission by the appointee.
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