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.569
The fact that the power of nomination be- longs 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.”570 This view is borne out by early opinion,571 as well as by the record of practice under the Constitution.
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,572 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.573
- 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). [Back to text]
- 3 Ops. Atty. Gen. 188 (1837). [Back to text]
- 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). [Back to text]
- 286 U.S. 6 (1932). [Back to text]
- E. Corwin, supra at 77. [Back to text]