Historical Background on Appointments Clause

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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 deliberations at the Constitutional Convention in Philadelphia, major writings of the prominent supporters of ratification,1 and the words and records of the state ratifiers of the federal Constitution reveal careful consideration about the proper method of appointment for federal offices. The delegates to the Constitutional Convention, in designing a system of appointments for federal government offices, drew on “their experiences with two flawed methods of appointment.” 2

First, the colonists who lived during the American Revolution resented the often unilateral power of the English Crown and the royal governors in the colonies to create and fill government offices.3 The “manipulation of official appointments” —generally achieved by creating and filling the key offices of government with political favorites, who were in turn dependent on the entity who appointed them—was “one of the American revolutionary generation’s greatest grievances against executive power.” 4

Second, many early state constitutions, adopted after the Declaration of Independence was written, reacted to the perceived abuses of the appointment power by the Crown and royal governors by lodging the power to appoint officials with the state legislature alone.5 But placing the appointment power with state representative assemblies also caused considerable turmoil.6 Those legislatures were seen as consolidating all governmental power—executive, judicial, and legislative—for themselves.7 This consolidation of power “had become the principal source of division and faction in the states.” 8 At least in the views of many delegates to the Constitutional Convention, the failure to give governors a stronger role in the appointment process was damaging to many state governments whose legislatures “had fallen easy prey to demagogues, provincialism, and factions” in their exercise of appointments.9 Likewise, the Articles of Confederation—which provided the governing framework for the young Republic before the adoption of the federal Constitution—authorized the Continental Congress to appoint officers.10

The delegates to the Constitutional Convention at Philadelphia were aware of the weaknesses of these models of appointment, and thus chose instead to separate “the power to create federal offices . . . from the power to fill them.” 11 They chose to vest Congress with the legislative power, including the authority to create federal offices, while the power “to appoint the most important officers” was placed with the single-person President, subject to confirmation by the Senate.12 Separating the power to create offices from the authority to appoint officers would, in the words of James Madison, provide “[o]ne of the best securities against the creation of unnecessary offices or tyrannical powers.” 13

At the Constitutional Convention, an early general consensus emerged among the delegates that the chief executive should play a more prominent role in the appointment of officers whose method of appointment was “not otherwise provided for” specifically in the Constitution.14 The delegates also debated where the power of appointment should be vested for a number of federal offices, including ambassadors, judges (including judges on the Supreme Court), as well as a treasurer.15 Some argued that placing the appointment power with the legislature would result in factional disputes and partisanship; others that granting such authority to the Executive would tend too much towards a monarchical system of government.16 The compromise that was eventually reached authorized the President to appoint high-level officers in the federal government, including certain postions named explicitly, as well as “all other officers” not mentioned, subject to Senate confirmation.17 This arrangement avoided the potential weaknesses of a legislative body making appointments, but preserved a check on the excesses of the Executive by preventing the President from making appointments unilaterally.18 Congress was also permitted to place the appointment of “inferior” officers with “the President alone, in the courts of law, or in the Heads of Departments.” 19

The Framers’ decision to place the power to appoint principal officers with the President ensures accountability for his choices.20 Placing the power of nomination with the President alone guarantees that the public knows who to blame for poor (or corrupt) choices.21 Alexander Hamilton’s arguments in the Federalist Papers, which “contain the most thorough contemporary justification for the method of appointing principals officers that the Framers adopted,” 22 stressed that placing the appointment power with a single individual, rather than a multi-member body, ensured a measure of accountability for those appointments.23 Although the public can reasonably hold a single individual accountable for his appointment choices, doing so for a multi-member body is much more difficult as the individual ultimately responsible for an appointment is “impenetrable to the public eye.” 24 Granting the appointment power to a single President was preferable to “a body of men” because a single individual would have a “livelier sense of duty and a more exact regard to reputation” in making appointments. A single President would have “fewer personal attachments to gratify[ ] than a body of men,” and “cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body.” 25 Rather than selecting the best candidate for an office on the merits, a collective body could simply trade votes in order to select their personal favorites based on “friendship and of affection.” 26 On the other hand, requiring Senate concurrence with regard to major appointments served as “an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters.” 27

The Framers of the Constitution thus placed the power of appointment for principal officers with a single individual—the President—because a single actor would more likely be held accountable for his choices.28 This principle of accountability extended to the Framers’ provision that inferior officers may be appointed by the heads of executive departments, as the latter “possess a reputational stake in the quality of the individuals they appoint [and] are directly answerable to the President, who is responsible to his constituency.” 29 Further, at the Constitutional Convention, the delegates were also careful to prevent the “diffusion” of the appointment power by strictly limiting who can make appointments.30 The Framers’ careful “husbanding [of] the appointment power to limit its diffusion . . . ensure[d] that those who wielded it were accountable to political force and the will of the people.” 31 The importance of accountability for federal appointments and the crucial check the Appointments Clause provides between the branches of government are principles that have informed subsequent Supreme Court jurisprudence concerning the appointment of federal officials.

1: See The Federalist Papers.
2: Weiss v. United States, 510 U.S. 163, 184 (1994) (Souter, J., concurring).
3: See Gordon Wood, The Creation of The American Republic, 1776–1787, at 143–48 (1969); Freytag v. Comm’r, 501 U.S. 868, 883–84 (1991); Edward Corwin, The President: Office and Powers 1787–1957, at 69–70 (4th ed. 1957); Saikrishna B. Prakash, Imperial From the Beginning 171 (2015).
4: Freytag, 501 U.S. at 883 (quoting Wood, supra note 3, at 79).
5: Wood, supra note 3, at 143–50; Michael J. Gerhardt, The Federal Appointments Process 16–20 (2003). See, e.g., Va. Const. (1776). Some state constitutions provided that the appointment power was shared between the governor and state assembly. Wood, supra note 3, at 148–50; Gerhardt, supra, at 17–20.
6: See Wood, supra note 3, at 407; Freytag, 501 U.S. at 903–07 (Scalia, J., concurring in part and concurring in the judgment); Weiss v. United States, 510 U.S. 163, 184 (1994) (Souter, J., concurring).
7: Wood, supra note 3, at 407.
8: Wood, supra note 3, at 407.
9: See Gerhardt, supra note 5, at 18.
10: Articles of Confederation of 1781, art. IX, para. 5 ( “The united states in congress assembled shall have authority . . . to appoint such . . . civil officers as may be necessary for managing the general affairs of the united states under their direction . . . .” ).
11: Weiss, 510 U.S. at 184 (Souter, J., concurring); see Myers v. United States, 272 U.S. 52, 111 (1926).
12: Weiss, 510 U.S. at 184 (Souter, J., concurring).
13: Madison’s Observations on Jefferson’s Draft of a Constitution for Virginia (1788), reprinted in 6 Papers of Thomas Jefferson 308, 311 (J. Boyd ed., 1952).
14: 1 The Records Of The Federal Convention Of 1787, at 67 (Max Farrand ed., 1966). See Joseph P. Harris, The Advice and Consent of the Senate 18 (1953). During the proceedings, the Convention adopted a motion to authorize judges to be appointed by the Senate, but ultimately rejected this framework in favor of Presidential appointment of all principal officers. Id. at 19.
15: See Harris, supra note 14, at 19–24; Gerhardt, supra note 5, at 16–23.
16: Gerhardt, supra note 5, at 16–23.
17: See Weiss, 510 U.S. at 184 (Souter, J., concurring) ( “With error and overcorrection behind them, the Framers came to appreciate the necessity of separating at least to some degree the power to create federal offices (a power they assumed would belong to Congress) from the power to fill them, and they came to see good reason for placing the initiative to appoint the most important federal officers in the single-person presidency, not the multimember Legislature.” ); see ArtII.S2.C2.3.6 Creation of Federal Offices to ArtII.S2.C2.3.9 Restrictions on Congress’s Authority.
18: See Weiss, 510 U.S. at 184–85 (Souter, J., concurring). See The Federalist No. 76 (Alexander Hamilton); 3 Joseph Story, Commentaries on the Constitution of the United States §§ 1522–1525 (1833).
19: U.S. Const. art. II, § 2, cl. 2.
20: See 1 The Records of the Federal Convention of 1787, at 70 (Max Farrand ed., 1911) [hereinafter Farrand’s Records] (Mr. Wilson: “If appointments of Officers are made by a sing. Ex he is responsible for the propriety of the same. [N]ot so where the Executive is numerous.” ); Id. at 42 ( “As the Executive will be responsible in point of character at least, . . . he will be careful to look through all the States for proper characters.” ) (statement of Mr. Ghorum); Freytag v. Comm’r, 501 U.S. 868, 884 (1991) ( “The Framers understood, however, that by limiting the appointment power, they could ensure that those who wielded it were accountable to political force and the will of the people.” ); see Jennifer L. Mascott, Who Are “Officers of the United States” ?, 70 Stan. L. Rev. 443, 456 (2018).
21: See Mascott, supra note 20, at 456.
22: See Weiss, 510 U.S. at 185 n.1 (Souter, J., concurring).
23: See The Federalist No. 76 (Alexander Hamilton) ( “I proceed to lay it down as a rule, that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment.” ).
24: Id. See Freytag, 501 U.S. at 884 (majority opinion); id. at 903–07 (Scalia, J., concurring in part and concurring in the judgment). See also 1 Works of James Wilson 359–360 (J. Andrews ed., 1896) (arguing that placing the appointment power in a multi-member executive would inhibit holding that body accountable for its appointments).
25: See The Federalist No. 76 (Alexander Hamilton).
26: Id.
27: Id.
28: See, e.g., 2 Farrand’s Records, supra note 20, at 42 ( “As the Executive will be responsible in point of character at least, . . . he will be careful to look through all the States for proper characters.” ) (statement of Mr. Ghorum). See Mascott, supra note 20, at 456.
29: See Freytag, 501 U.S. at 907 (Scalia, J., concurring in part and concurring in the judgment). Inferior officers may also sometimes be appointed by the President alone or the courts of law. U.S. Const. art. II, § 2, cl. 2. The appointment of Judicial Branch officials might raise distinct issues from the accountability demanded for Executive Branch officers. See ArtIII.S1.10.2.1 Overview of Good Behavior Clause to ArtIII.S1.10.2.3 Good Behavior Clause Doctrine; The Federalist No. 78 (Alexander Hamilton).
30: See Freytag, 501 U.S. at 883 (majority opinion).
31: See id. at 883–84 (majority opinion); Weiss v. United States, 510 U.S. 163, 188 n.3 (1994) (Souter, J., concurring) ( “And if Congress, with the President’s approval, authorizes a lower level Executive Branch official to appoint a principal officer, it again has adopted a more diffuse and less accountable mode of appointment than the Constitution requires; this time it has violated the bar on abdication.” ); see, e.g., Ryder v. United States, 515 U.S. 177, 179 (1995) (holding invalid the affirmance of a conviction by a military court whose members, though appointed by Executive Branch officials, were not appointed in accordance with the Appointments Clause).